O'Gorman v Sydney South West Area Health Service

Betts v Whittingslowe (1945) 71 CLR 637 at 649 Chappel v Hart (1998) 195 CLR 232 Commonwealth of Australia v McLean (NSWCA - 31.12.1996) Dell v Dalton (1991) 23 NSWLR 528 Dobler v Kenneth Halverson [2007] NSWCA 335 Fitch v Hyde-Cates (1982) 150 CLR 482 CASES CITED : Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 at 279 O'Shea v Sullivan (unreported, Smart J, 6 May 1995). Ruddock v Taylor [2003] NSWCA 262, (2003) 58 NSWLR 269 at 286 Rufo v Hosking [2004] NSWCA 391, (2004) 61 NSWLR 678 Seltsam Pty Limited v McGuiness & Anor [2000] NSWCA 29, (2000) 49 NSWLR 262 at 279 Sharman v Evans (1977) 138 CLR 563 Skelton v Collins (1966) 115 CLR 94

PARTIES : Christine Ann O'Gorman - Plaintiff Sydney South West Area Health Service - Defendant

COUNSEL : Mr AJ Bartley SC/Mr DR Toomey - Plaintiff Mr P Menzies QC/Mr C Hodgson - Defendant

SOLICITORS : McLaughlin & Riordan - Plaintiff IV Knight, Crown Solicitor - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20239/2008 - Christine Ann O'GORMAN v SYDNEY SOUTH WEST AREA HEALTH SERVICE

JUDGMENT 1 HIS HONOUR: The plaintiff brought proceedings against the defendant as the organisation in charge of "BreastScreen NSW Sydney South West" ("BreastScreen"). The plaintiff alleges that BreastScreen failed to recall her for further investigation following a mammogram on 23 February 2006. In January 2007 she was diagnosed with breast cancer which has subsequently metastasised into her lungs and brain. 2 The plaintiff relied upon the following particulars of negligence:

(a) Failure to exercise due care, skill and attention in the interpretation of the 2006 mammogram.

(b) In circumstances where each mammogram bore the same patient identification number, thereby identifying each mammogram as being for the plaintiff, failure to conduct, either properly or at all, a comparison of the 2006 mammogram and the 2004 mammogram at the time the 2006 mammogram was performed.

(c) Failure to recall the plaintiff after the 2006 mammogram for coned compression and magnification views of the left breast.

(d) Failure to recall the plaintiff after the 2006 mammogram for ultrasound of the left breast.

(e) Failure to inform the plaintiff after the 2006 mammogram, that there was a suspicious mass visible on the scans and to recommend that she undergo ultrasound and/or biopsy of the mass in the left breast.

(f) Failure to refer the February 2006 mammogram for further opinion by an appropriately qualified medical expert in circumstances where a suspicious mass was visible. 3 The plaintiff's health is such that she is likely to die before 23 December 2008. Accordingly the proceedings, which were filed on 19 June 2008, were given expedition. It should be noted that both sides, in particular the defendant, have co-operated significantly so as to enable the matter to come on for hearing and be completed expeditiously. Of necessity this judgment has been prepared subject to the same time constraints.

Factual background 4 Unless otherwise indicated, I find the facts to be as follows. 5 The plaintiff was born on 18 March 1951. She has one daughter, Christie, who is married and does not live with the plaintiff. The plaintiff has been in a de facto relationship with her partner, Glen, since 2002. They live together at premises in Moorebank. 6 The plaintiff spent most of her working life as a secretary and clerk within the legal profession. From 28 August 2000 she was employed as a legal secretary at a city law firm. I am satisfied, and it was not in dispute, that had she not developed her illness she would have continued in that employment until she turned 65. When she ceased work in August 2007, she was earning $70,000 gross per year ($53,350 net). 7 The plaintiff first attended BreastScreen in 1994 as part of the BreastScreen free mammogram service. Thereafter the plaintiff attended BreastScreen for mammography in 1996, 1998, 2002, 2004 and 23 February 2006. 8 On the occasion of each attendance the plaintiff filled out a document entitled "Screening Consent Form". Apart from signing that document, the plaintiff ticked various boxes which indicated her consent to undergoing the mammogram, that she had read and understood the information provided to her about screening mammograms, her understanding that she would receive the results of the mammogram, that she agreed to have the results of her test sent to her doctor and that she consented to previous mammograms being used for comparison. 9 One of the boxes which the plaintiff ticked affirmatively on each occasion that she attended BreastScreen for mammography was in the following terms: "I understand that while mammography is the best single method of detecting early breast cancer, there is a small risk that a breast cancer may not be detected by a screening mammogram. That is why I am encouraged to have an annual clinical examination of my breasts by my doctor and to examine my breasts monthly." 10 In her evidence the plaintiff agreed that at no time before 23 February 2006 had she attended her doctor to have an annual clinical examination of her breasts. She said that she used check her breasts for lumps at approximately monthly intervals. I accept the plaintiff's evidence in that regard. 11 Following each attendance at BreastScreen, the plaintiff received a pro forma letter and a similar letter was sent to her general practitioner. The letter which she received following the attendance of 23 February 2006 was sent on 7 March 2006: "Following your visit to BreastScreen NSW on 23.2.2006, I have been advised by the doctors who looked at your screening mammogram (breast x-rays) that there was no visible evidence of breast cancer. It is important that you know there is a chance that an existing breast cancer may not be seen on a screening mammogram. Also, new breast cancers can develop between screening visits. Therefore, we recommend that you have an annual breast examination by your doctor. If you notice any unusual changes in your breasts you should contact your doctor without delay. Having a screening mammogram every two years is important for women aged 50-69, so we send reminder letters to women who are in this age group. Otherwise, you can ring 1300 2050 to arrange an appointment. Should you change your address please notify us. Also, remember to talk to your doctor about the importance of two-yearly pap tests. Thank you for attending BreastScreen NSW." 12 The plaintiff remembered that when she first went to BreastScreen, she read a pamphlet or pamphlets which were displayed on a desk. She could not recall having read those pamphlets subsequently. When shown pamphlets in cross-examination the plaintiff agreed that she was aware of the information contained in them. When she attended BreastScreen it was usually during her lunch hour. 13 On 1 January 2007 while the plaintiff was reading in bed she scratched her left breast and felt a hard lump which she had not been aware of before. The plaintiff identified the site of the lump as 3 cms above the nipple in a straight line with the nipple. 14 The plaintiff was on holidays at the time and made arrangements to see her general practitioner upon her return to Sydney. She was not able to obtain an appointment for a mammogram and ultrasound until 17 January 2007. After undergoing those investigations, the plaintiff was told that they showed a cancer in her left breast. 15 The following day (18 January 2007) the plaintiff consulted a general surgeon, Dr Shah. He confirmed the diagnosis of cancer and offered the following options:

(i) Remove the lump immediately which would leave her badly scarred, as the tumour was 4 cm by 4 cm. (ii) Undergo chemotherapy to shrink the tumour and then remove it. (iii) Undergo a mastectomy.

The plaintiff chose option (ii). 16 On succeeding days the plaintiff underwent further tests including a biopsy. On 1 February the plaintiff underwent a Sentinal Node Lympho-scintigraphy at Liverpool Hospital (a procedure involving injections into the breast and various scans to locate the lymph nodes that were to be removed). On 2 February 2007 the plaintiff underwent a Sentinal Node Biopsy which involved the removal of two lymph nodes from her left breast. This procedure took place under general anaesthetic. 17 After the two lymph nodes were tested, the plaintiff was told that they were cancer free. Dr Shah told the plaintiff that this meant that the cancer had not spread to any other part of her body and that it would not be necessary for the lymph nodes to be removed. This surgery left the plaintiff with a three inch scar under her left arm. 18 The plaintiff came under the care of Dr Richard Eek, oncologist, at the Cancer Clinic at Liverpool Hospital. He sent the plaintiff for further tests including an ECG, heart scan, bone scan and CT scan. The plaintiff commenced chemotherapy on 28 February 2007. The program comprised eight treatments, with one treatment every three weeks. The plaintiff's final treatment was scheduled for 26 July 2007. 19 The plaintiff underwent chemotherapy treatment every third Thursday. She was unable to work on the Thursday and Friday following and on some occasions was still so affected by the chemotherapy that she was unable to work on Mondays and Tuesdays. The side effects which she experienced were nausea and tiredness. She lost her hair. She put on 15 kgs in weight because one of the anti-nausea drugs which she was prescribed was a steroid. 20 The final four treatments severely affected the plaintiff. She was exhausted all the time, she developed aching and soreness in her legs which would often last for a week. This prevented her from working. 21 As a result of the chemotherapy, the tumour which had grown to 8 cms, shrank to 5.5 cms. It did not shrink any further. It was decided that the plaintiff should undergo a mastectomy and she was booked into South Sydney Private Hospital on 17 August 2007 for that procedure. 22 At the end of July 2007 the plaintiff became very breathless. Chest x-rays and a CT scan of the chest were reported as "normal". Although the plaintiff had returned to work she found it difficult due to her breathlessness. She was unable to walk more than a few feet without having to stop for a rest. She ceased work on 15 August 2007 and has not resumed. 23 On 16 August 2007 the plaintiff underwent a heart scan and a CT Pulmonary Angiogram. A pulmonary embolism was found in her right lower lung. The plaintiff was prescribed Clexane to disperse the clot. This treatment was administered by the plaintiff injecting herself in the stomach twice a day. 24 The plaintiff's mastectomy took place on 23 August 2007. The plaintiff remained in hospital until 27 August. When the plaintiff saw Dr Shah on 4 September 2007 for a check up, it was necessary to have approximately 250 ml of fluid drained from the site of the wound. 25 The plaintiff saw Professor Delaney on 11 September 2007 to set up her radiation program. The radiation treatment took place over five weeks with the plaintiff attending Monday to Friday each week. The radiation treatment badly burned her and a community nurse visited her daily during the last week to change the dressings on the burn wounds. The wounds were extremely painful. 26 In early 2008 the plaintiff consulted Dr Diva, a plastic surgeon, in relation to a breast reconstruction procedure. The plaintiff was due to undergo the reconstructive surgery on 26 May 2008 at Liverpool Hospital. It was necessary for the plaintiff to have updated scans before this procedure to ensure that no blood clots were present. 27 For that purpose the plaintiff underwent a CT Pulmonary Angiogram on 13 May 2008. That angiogram showed tumours in both lungs. The plaintiff was very upset when Dr Shah gave her that news. She was particularly shocked because she had been told that the cancer had not spread. 28 On 20 May 2008 the plaintiff came under the care of Dr Goldrick as her oncologist. Dr Goldrick told the plaintiff about a new drug, Avastin, which was being tested. There had been some success in using this drug on certain types of cancer including secondary lung cancers. The plaintiff was referred to a Professor Friedlander, who was conducting the trial. 29 Before he commenced treatment, Professor Friedlander arranged for the plaintiff to have further tests. These tests included a brain scan which was conducted on 11 June 2008. This showed that there were tumours in the plaintiff's brain. This meant that the plaintiff was unable to participate in the trial. The plaintiff was upset, not only by the news of the tumours in her brain, but because she could not undergo the Avastin treatment. 30 On 23 June 2008 the plaintiff commenced a five day course of radiotherapy treatment in respect of the tumours in her brain. This left her feeling extremely tired. It also caused swelling in her brain which in turn required further medication. 31 On 10 July 2008 the plaintiff commenced a further chemotherapy program. It was planned that the plaintiff would undergo treatment once a week for three weeks and then have the fourth week off. This pattern would continue until the end of October 2008 and then resume after allowing the plaintiff a period of rest. The plaintiff experienced an adverse reaction to the second course of chemotherapy which required her to be admitted to the Liverpool Hospital with a severely elevated temperature. By the time of the hearing the plaintiff had resumed chemotherapy. 32 The plaintiff is conscious of the fact that her life expectancy has been severely reduced. She is upset that she will not be alive when her daughter has children and that she will not get the opportunity of meeting her grandchildren. The plaintiff and her daughter are very close, the plaintiff having raised Christie as a single mother since she was eight years old. 33 The plaintiff has become depressed and describes herself as being sad all the time. She cries easily. Although she tries to put on a brave face for her partner and Christie, she is finding it harder to do. She candidly states that she is "desperately afraid" of the future. 34 By the date of the trial, the plaintiff was so ill that she could not perform any housework and was spending most of every day sitting in an armchair watching television. She now finds that she is too tired to read for very long. The plaintiff was very active before her illness and her forced inactivity makes her very frustrated. 35 Because of her illness, it is necessary for her partner and Christie to do many things for the plaintiff which before her illness she was able to do for herself. As part of the spirit of co-operation which has characterised this litigation, the question of care, both past and future, has been agreed between the parties and I will refer to that issue in more detail when I come to deal with the question of damages. 36 An issue which remains outstanding between the parties is the amount which the plaintiff would have spent on herself by way of ordinary living expenses had she not contracted the illness. I will review the evidence on this issue when dealing with damages. 37 Before going further I should say something about BreastScreen and the procedures followed by it. The following is taken primarily from the statement and evidence of Ms Lunnon, who is the current Acting Service Director of BreastScreen NSW Sydney South West. 38 BreastScreen NSW is a State and Federal government funded program that provides free breast screening mammograms to women aged 50 to 69 years, who are invited to attend for a screening mammogram every two years. Women aged 40 to 49 and those over 70 may also be screened on request. Ms Lunnon described "breast screening" as the process for looking for breast cancer in a population of women who have no symptoms of breast cancer. 39 BreastScreen NSW has a network of eight local services operating and funded independently of each other across New South Wales and BreastScreen NSW SSW is one of those eight services. It is a business unit of the defendant. 40 The aims and objectives of BreastScreen are the same aims and objectives of the BreastScreen Australia program. Those aims and objectives are outlined in the BreastScreen Australia National Accreditation Standards November 2004. The principal aim is to reduce the amount of illness and death associated with breast cancer through the early detection of the disease. A copy of the National Accreditation Standards was annexed to the statement of Ms Lunnon. 41 Ms Lunnon drew a distinction between a screening mammogram and a diagnostic mammogram. This distinction was set out in a "Fact Sheet" prepared by the Cancer Institute of NSW which was annexed to Ms Lunnon's statement. 42 The fact sheet identifies the following differences. A screening mammogram is for asymptomatic "well" women to detect unsuspected lesions. The emphasis is on mass population screening to reduce overall mortality and morbidity. It is a free service. It provides for recall for further tests when needed, as well as recall for routine screening at recommended intervals, usually two years. Pro forma letters are sent notifying the client and the general practitioner of the results. 43 A diagnostic mammogram is used for diagnosing breast changes or abnormalities that may have been detected through breast self-examination and/or clinical examination. The emphasis is on individual benefit. A full report to the requisite medical practitioner is usually provided within a few days. The treating medical practitioner records data specific to the management of the individual patient. 44 Associate Professor Osborne, who is the State Radiologist for BreastScreen Queensland, and who was the defendant's expert, expressed the distinction in the following terms: "If I had seen films in 2002 for the first time, particularly if she had come to me, if Ms O'Gorman had come to me as a diagnostic case with symptoms there would be absolutely no - I would have no reservation in doing further tests. As a screening case, as I have said, one of the most important things that we look for benignity of lesions is how they act. So if we have got a lesion that is there previously, particularly in this case four years previously, we would assume that this is acting like a benign lesion. I agree that there is a possibility that there could be a ductal carcinoma in situ or some other pre-malignant lesion going on there but there is always that possibility in every breast that there is some predisposing factor to a tumour, and the pathologists have now shown this. But that's a possibility. What we are looking at with screening is what does a woman have now and does she have what is there now, is that going to be benign between now and the next visit, based upon what we see now and on the previous examinations, and what we are looking at, there has been no suspicious change since the previous examination. We actually - to show how BreastScreen works, we have these internationally accepted recall rates that all readers comply with because basically this is best practice around the world. Five percent of cases are recalled on second and subsequent visits because we are looking for change particularly, but on a first visit we recall ten percent of cases because we've got nothing to compare it with. There is absolutely no argument on my part that if on any occasion Ms O'Gorman had presented as a first visit on 98, 2002, 2004, any of those occasions, I personally would have done an ultrasound as well as a mammogram, but we are looking at sequence and that's the big difference between diagnostic work and screening work. We have a policy of mammography only and therefore sequencing is extremely important." (T.105.28-106.5)

And later: "It is a diagnostic examination, it is not an absolutist examination where there is benign and then it is investigated. With screening it is not, if we investigated every case that was not absolutely benign we wouldn't be investigating five percent of the women who come back, we would be investigating thirty to forty percent. That's a very important difference between diagnostic and screening". (T.113.30)

Senior counsel for the plaintiff did not accept that the suggested distinction between a screening mammogram and a diagnostic mammogram was valid. 45 As previously indicated, BreastScreen NSW is a State and Federal government funded program. In the 2007/8 and 2008/9 financial years its budget was approximately $4.8 million. That budget was fully utilised. 46 In the 2006/7 financial year 4.01% of women aged 50-69, who attended for their second or subsequent screening, were recalled for assessment by BreastScreen. This was approximately 919 women. The cost to BreastScreen of each recall was between $500 and $650 depending on whether or not a core biopsy was required. The National Accreditation Standard with which BreastScreen seeks to comply specifies that less than five percent of women, who attend for their second or subsequent screen, should be recalled for assessment. 47 Evidence was given by Ms Gins, the chief radiographer for BreastScreen. She explained the procedure which took place when a client attended for screening. 48 With mammography screening between four and six films are usually taken. For each breast one CC (cranio-caudal) view and between one and two MLO (mediolateral oblique) views are taken. A second MLO view is often required for women with larger breasts. A CC view is a picture of the breast from top to bottom and an MLO view is a picture of the breast taken from the side. 49 In March 2006 current mammogram films were taken to a viewing room. This is a darkened room in which up to five viewing machines for mammogram films are located. Each viewing machine had two horizontal rows with each row taking up to ninety sets of mammogram films, although the viewing machines were rarely loaded beyond sixty. 50 BreastScreen staff would load the viewing machine with the current mammogram films of clients for reading. These would be placed on the top row. If available, comparison mammogram films were placed on the bottom row. The practice was to hang the films from the visit before the previous visit, i.e. the films taken four years previously, on the bottom row. If those films were not available, other films were used unless none were available. 51 A light at the rear of the viewing machine illuminated the mammogram films as they were scrolled across a screen by the viewing radiologist. The mammogram films hung on the viewing machine had a sticker on them with a number indicating which visit that film was for, as well as the name of the client and the date that the film was taken. One of the films also had a barcode on it, which the radiologist would scan before entering his or her assessment of the current mammogram films into the computer positioned beside the viewing machine. The client files in the order that the mammogram films were hung on the viewing machine were placed upon a shelf beside the viewing machine so that the radiologist could consult them if necessary. 52 The computer system which applied when the plaintiff's 2006 mammogram films were assessed did not allow for the radiologists to make comments about the appearance of the breast, record observations such as the presence or absence of cysts, or changes in cysts, or to provide a detailed report. The radiologist had three choices on the computer:

(i) To record a normal finding. (ii) To record a need for recall for further assessment. (iii) To record that due to technical difficulties, the mammograms needed to be repeated. 53 If the radiologist adopted one of the last two options on the computer, he or she completed a mammography reporting form. No report was prepared if the first option was selected, i.e. a normal finding was recorded. 54 The mammogram films were always read by at least two radiologists. The practice was that two radiologists would separately and independently read the films and each make his or her own assessment. In doing so, neither had access to the assessment of the other. If the two assessments coincided, the recommendation by both was followed. If there were a disagreement, a third radiologist would read the films. The majority (i.e. two - one) decision would be followed. 55 The radiologists who viewed the plaintiff's 2006 mammograms were Doctors Van Rooijen and Varnava. Each of them prepared statements and gave evidence. BreastScreen records show that they examined the mammograms on 2 and 3 March 2006. Unsurprisingly, neither radiologist had any specific recollection of having examined the plaintiff's mammograms. They gave evidence as to their usual practice. Hereafter references to mammograms and other investigations are a reference to those which were taken of the plaintiff's left breast. 56 In the case of Dr Van Rooijen she commonly worked one half day per fortnight (on an average for three hours) reading mammograms for BreastScreen. It was her belief that the plaintiff's 2006 mammograms would have been compared with those taken in 2002. 57 Dr Van Rooijen described her usual practice as follows: "15 In February 2006 my usual practice in relation to the reading of mammograms was to first scan the barcode located on one of the films. This has the client's name and identification number and holds limited information concerning the client. When a barcode is scanned, information contained in that barcode immediately comes up on the computer screen located adjacent to the viewer. I would always cross check the name on the computer screen with the name label on the films on the viewer. 16 I would then read the current mammogram and compare it with the previous mammogram. If I interpreted the mammogram as having no sign of breast cancer, I would enter the key for "normal" on the computer. If I felt the quality of the mammogram was not sufficient for proper reading, I would enter the key for "technical" and complete a form indicating the repeat films required. If I felt the mammogram was suspicious for breast cancer, I would enter the key "assessment" and complete a recall for assessment form, outlining the abnormality and indicating what further work-up was required. In each of these three possible choices, the computer asked for confirmation of the choice. 17 If for whatever reason I needed to view a client's file (to review previous mammograms from other rounds, details of previous Assessment Clinics including previous biopsies and/or other details that the client may have provided about previous surgery), it was available in the room where the reading of the mammograms took place. I would only look at a client's file if I felt it was necessary to be able to make a determination about the mammogram I was reading. I do not, as a matter of practice, review every client's file when reading their mammogram. 18 When making a final determination about whether a mammogram is "normal" or requires a recall for assessment, the question I ask myself in the context of interpreting what I see in the mammogram, is whether I am satisfied the client does not need to return to the service for two years until her next routine screening mammogram. If there is doubt, I recall the client to the Assessment Clinic for further investigation and examination." 58 Dr Van Rooijen believed that she would have looked at the plaintiff's file to compare the 2006 mammogram with other previous visits to see whether there had been any previous assessments or comments. This was because of the obvious mass on the 2006 mammogram. 59 That evidence creates a difficulty. I have no doubt that Dr Van Rooijen genuinely believes that she would have consulted the plaintiff's file. However, she has no actual recollection to that effect. If her practice was similar to that of Dr Varnava, she would have been examining and comparing mammograms in respect of at least 60 clients per hour. This would limit the time available for consulting files. 60 In assessing that evidence, I cannot ignore the events which have occurred, ie a breast cancer has been discovered which the evidence strongly suggests was present in February 2006. It would be only human for Dr Van Rooijen to engage in some retrospective self-justification for her assessment of the plaintiff's February 2006 mammogram as normal. 61 I am left in the position that the only finding reasonably open to me is that Dr Van Rooijen may have referred to the plaintiff's file when assessing her mammogram in 2006, but I cannot put it any higher than that. 62 In relation to the plaintiff's file, Dr Van Rooijen said: "26 I have perused Ms O'Gorman's clinical notes for her attendances to BreastScreen NSW. Following her mammograms in 1994, 1996 and 1998 notations were made by the radiologists who read her mammograms concerning a presence of multiple cysts in Ms O'Gorman's breasts. There are no notations in relation to the mammograms she had performed in 2002 and 2004 as there were no forms to fill out at that time (the procedure had changed to registering a determination about the mammogram on the computer only, which did not allow for the making of notations concerning the mammogram, such as the presence of cysts)." 63 Doctor Van Rooijen's final comment on this issue was: "If Ms O'Gorman had no previous mammograms at BreastScreen NSW or no noted history of cysts in her breasts, I would have recalled Ms O'Gorman to the Assessment Clinic for further examination and investigation of the mass that is present on her mammogram". 64 An attempt was made by the defendant to adduce evidence from Dr Van Rooijen as to the reasons she now believed would have indicated that the 2006 mammogram was normal when she examined it. I rejected that evidence. I did so for a number of reasons. 65 Such evidence (which was set out in Dr Van Rooijen's statement) was in the nature of expert opinion and had not been served in accordance with the rules. Since Dr Van Rooijen had no recollection of having examined the 2006 mammogram, the evidence could only be a reconstruction and would involve some speculation. The other problem was that to which I have already adverted, ie the evidence would inevitably involve some element of ex post facto exculpatory justification for what had occurred. I concluded that in all the circumstances such evidence would be unreliable and that it would be unfair to the plaintiff to admit it. 66 I did allow limited evidence as to Dr Van Rooijen's present opinion of what the 2006 mammogram showed. The important thing for the defendant is the undoubted fact that Dr Van Rooijen for whatever reason must have regarded the mammogram as normal in March 2006 or she would not have made that entry in the computer. 67 The evidence of Dr Varnava was similar to that of Dr Van Rooijen as to the way in which the viewing of mammograms was carried out by radiologists working for BreastScreen in March 2006. He said that the reason why the current mammogram was compared with films taken two visits earlier, rather than the films from the visits immediately prior, was that if a change had taken place it would be more discernible on a comparison between films taken four years apart, than between films taken two years apart. 68 Dr Varnava described his practice in 2006 as follows: "12 In 2004-2006, my practice was that as each mammogram comes into view, I assessed whether it had any mammographic signs which were suspicious for malignancy. I always compared the current mammogram with the previous mammogram placed on the multi-viewer. I often also referred to the patient's other mammograms which were in the manila cardboard file next to the multi-viewer. 13 If my opinion was that there were no suspicious features on a set of mammogram films, I was required to scan a barcode of the patient's name. The computer screen then brought up the patient's details with a default option of "normal". If I agreed that a mammogram was "normal", I pressed the enter key. On the computer screen a "normal" entry then appeared as "Recommendation Normal - are all the above data correct Y/N?" I then pressed either "Yes" or the enter key to confirm a "Normal" report. 14 If there were suspicious features on the mammogram that I determined warranted further evaluation, I was required to scan the barcode of the patient's name and press the number 2 on the keyboard which is selected an "Assess" entry against the patient's name, and then the enter key. On the computer screen an "Assess" entry then appeared as "Recommendation Assess - are all the above date correct Y/N?" Once again either the "Yes" or enter key was required to be pressed to confirm the "Assess" entry. A manual reporting sheet was then filled out by me which recorded the patient's name, the abnormality detected and the recommendations for further imaging/investigation (ultrasounds, x-ray etc)." 69 Dr Varnava's evidence in relation to the 2006 mammogram was: "29 Radiologist one read the plaintiff's scans on 2 March 2006 and reported the scans to be normal. I am listed as radiologist two on the computerised mammography report. At the time of reporting on the plaintiff's mammogram, I would not have been aware of the report of the first radiologist. My initials, AV, appear on the form. I read the scans on 3 March 2006. I reported the scans to be normal. I am unable to recall which prior films I had or sought access to in order to report on the plaintiff's 2006 films. I assume, in accordance with normal practice, that the 2002 scans would have been loaded onto the multi-viewer for comparison. I am unable to recall whether I also sought access to the plaintiff's 2004 films or earlier films, in order to report on her 2006 mammogram. 30 Three views of the plaintiff's left breast are provided. The previously reported 2.5 cm mass seen in the midline approximately 8 cm from the nipple has increased in size to 3 cm. … 32 The presence of multiple smoothly contoured lesions rather than an individual smoothly contoured lesion is generally a reassuring finding. Conversely, if a patient has a single solitary mass that is rounded, this is a potentially concerning finding if there is no prior history of cysts and I would generally recall such a patient for assessment and I would have done so here if the earlier films were not available and all that I had to proceed upon was the 2006 films." 70 As with Dr Van Rooijen, I rejected the defendant's attempt to lead evidence from Dr Varnava of the reasons why he now believed he would have indicated on the computer that the plaintiff's 2006 mammogram was normal. In doing so my reasoning was the same. 71 In his oral evidence the following exchange took place between Dr Varnava and myself: "Q. How many patients or in respect of how many patients would you view films? A. As a general rule, and this is on average, it would probably be about 60 patients per hour. Now, for whatever reason, purely by chance sometimes you get a multi-viewer that has patients who have very dense, large breasts and it might be in an hour I might get through only 30 or 40 patients. Some days for whatever reason, the patients have empty breasts which have no glandular tissue and you probably get through possibly 70 or 80 patients in an hour. It is a very individual occurrence and basically you take as much time as the difficulty of the mammogram takes. If they are very dense breasts with multiple findings it will take a longer time because you will want to compare it with previous studies. If the breasts are completely empty and there is no glandular tissue whatsoever, in other words they are completely black, then you can dismiss it pretty much straight away because the white glandular tissue is where the cancer is going to come from. So if the breasts are completely black really you can pass on very, very quickly." (T.82.15)

Doctor Varnava used to attend BreastScreen for the purpose of examining mammograms for a couple of hours on Friday, a couple of hours on Saturday and a couple of hours on Sunday. 72 Doctor Kitchener, a specialist radiologist gave expert evidence on behalf of the plaintiff. As previously indicated, Associate Professor Osborne was the expert witness for the defendant. Each doctor provided a number of reports and gave oral evidence. Their evidence was taken concurrently. 73 The defendant submitted that more weight should be given to the opinion of Associate Professor Osborne because he had greater experience in mammographic screening given his senior position with BreastScreen Queensland. While I accept that Associate Professor Osborne had more experience with the procedures and protocols followed by the BreastScreen organisation throughout Australia, I do not find that Associate Professor Osborne's expertise in the interpretation of mammograms and ultrasounds was any greater than that of Dr Kitchener. As is clear from the curricula vitae of both doctors, each is an experienced and highly qualified radiologist with a particular interest in breast imaging. 74 The resolution of their conflict of opinion cannot be achieved by reference to any superior expertise on the part of either of them. 75 The defendant submitted that greater weight should be given to the opinion of Associate Professor Osborne because of the methodology, which he used in preparing his first report. It was submitted that Associate Professor Osborne had commenced his analysis on a prospective basis, having available only that material which would have been available to the radiologists who examined the plaintiff's 2006 mammograms. He did not know the site of the cancer and other details concerning it. 76 The defendant contrasted that approach with that which was followed by Dr Kitchener. It submitted that he in reality was carrying out a retrospective analysis using as his start point the fact that a cancer had been found in the plaintiff's left breast in January 2007. The defendant submitted that it was obvious from Dr Kitchener's reports that he was unaware of the procedures followed by BreastScreen when conducting screening mammograms. 77 I am not persuaded that the suggested difference in approach gives any greater validity to the opinions of Associate Professor Osborne than to those of Dr Kitchener. It is quite obvious from the initial letters of instruction to Associate Professor Osborne that a cancer had been discovered after a report of normality had been received from BreastScreen by the plaintiff. The purpose for which his opinion was being sought would have been well understood by Associate Professor Osborne. 78 It was the opinion of Dr Kitchener that although there was no clear indication of the presence of a cancer in the plaintiff's 2006 mammogram, the combination of signs was such that a real suspicion existed as to the presence of a malignancy which required that the plaintiff be recalled for further assessment. Associate Professor Osborne agreed that had the 2006 mammogram been the first occasion that the plaintiff had attended for mammography, he would have recalled her for further assessment. When, however, the 2006 films were compared with either the 2004 or 2002 films his opinion was that the mass depicted in the 2006 mammogram was consistent with a benign cyst and that a recall of the plaintiff was not required. Associate Professor Osborne drew a distinction between the possibility of there being a malignancy which he said always existed where masses appeared on mammography, and a positive indication of malignancy such as spiculation or distortion of the mass. 79 There was an important factual issue between Dr Kitchener and Associate Professor Osborne which requires resolution. This was the extent of the change in the size of the mass which was found in the 2006 mammogram when compared with the same mass in either the 2002 or 2004 mammograms. It was Dr Kitchener's opinion that when one measured the dimensions of the mass in the 2006 mammogram and compared its size with the dimensions of the same mass in the 2004 mammogram, it had approximately doubled in size between 2004 and 2006. Associate Professor Osborne in his report said that the mass in 2006 was approximately the same size as it had been in 2004 but that it was more dense in appearance. In his oral evidence, he essentially maintained that position but did concede, "it could be marginally bigger" (T.125.1). 80 The question of whether the mass had increased in size between 2002/4 and 2006, and if so to what extent, became a matter of fundamental importance at the trial. It is a factual issue which I must decide. In doing so, it is necessary to set out in more detail the opinions of Associate Professor Osborne and Dr Kitchener and in particular those matters upon which they agreed and those matters upon which they disagreed. 81 In relation to the 2002 mammogram, the doctors agreed that there were two masses present; a smaller anterior mass and a larger posterior mass. They agreed that there was fine scattered calcification, but that the calcification was not "clustered", i.e. concentrated in close relationship. There was no evidence of suspicious features such as spiculated lesions or distortion. Doctor Kitchener noted two matters, which Associate Professor Osborne did not refer to. They were some lateral lobulation in the larger mass and some indistinct margins. The significance of an indistinct margin was that the "halo" sign to which Associate Professor Osborne had referred did not apply to the whole of the posterior mass in that some of the margins of that mass were indistinct, i.e. could not be observed. Doctor Kitchener agreed that the part of the mass which had the "halo", would be benign but in respect of the part that did not have the "halo" around it, i.e. the part with the indistinct margin, one could not tell. 82 In relation to the indistinct margins of the posterior mass, Associate Professor Osborne said: "In general I agree with Dr Kitchener except that when one talks about an indistinct margin there may be a number of reasons why it is indistinct. It may be there is actually tumour that is growing out and that is, I agree totally, that is a positive sign of malignancy. What it also might be is that the cyst or other benign structure that Dr Kitchener has described as having a halo, it very seldom arises in isolation. The breasts are almost always, some have varying degrees of breast density. Now, the cyst or benign structure may be growing out of that tissue and in that case you will not see the margin. It might be that in fact the cyst, it is a fluid filled structure, might be actually squashed down so in that respect it will be indistinct. It might be, there are other reasons why the margins may be indistinct. It is one of the problems with mammography. There are positive signs which say yes, that is a cancer. But to say that the absence of signs or negative signs to say therefore that is something that is definitely not benign and therefore we have to investigate them. The reality is there is such a wide range of normal breast tissues that there is, best say if you look under a bell curve there is such, there is a wide range of benign tissues there is also a wide range of malignant tissues and there is a degree of overlap. That is what we actually argue about and it is a total appearance of what is going there. So indistinct margins, it is like fine calcification. These are negative signs or negative descriptions that are a lot harder to pin down. They are not positive ones." (T.101.40-102.15) 83 Doctor Kitchener explained what he meant by lobulation as follows: "Lobulation can occur in cysts. It occurs in solid lesions also where there has been an outgrowth. The cyst is usually a spherical structure, it is a simple lesion unless there are two or three cysts sitting adjacent to each other, then the cysts will appear lobular. But in the past it appears almost as a spherical structure and by 2006 there was a bunch, a lobule sticking out from it." (T.117.15) 84 At no time in the course of the oral evidence did Associate Professor Osborne challenge the proposition that there were some indistinct margins on the posterior mass, nor did he challenge the presence of lobulation, either in 2002 or in 2006. He did, of course, challenge their significance. It is surprising that Associate Professor Osborne did not refer to those features in his reports. 85 In relation to the 2004 mammogram, the doctors agreed that there had been no change in the size of the posterior mass since 2002. Associate Professor Osborne made no mention of there being slightly indistinct margins on parts of that mass, but in oral evidence accepted that to be the case. Doctor Kitchener referred to what he described as a "posteromedial inferior band of tissue which had increased in size". Associate Professor Osborne accepted that the band of tissue was observable on the 2004 mammogram but was not sure that there had been any increase in size. Associate Professor Osborne did not see any particular significance in the presence of such a band of tissue. He thought that it could be explained by the position of the mammogram when the film was taken or by hormonal changes which could take place in two years, particularly in a younger woman. 86 In relation to the significance of calcification, if present, the doctors were generally in agreement. Doctor Kitchener said: "Most calcification in the breasts, as he said, are benign and the larger the calcifications the more benign they are and the smaller and finer the calcifications are the more likely they become to be malignant micro calcification. So sometimes malignant micro calcifications are perfectly obvious in that there are certain signs of them in clustering, linear branching. There are some signs that make them malignant. There are none of those signs present in 2004." (T.110.15) 87 Associate Professor Osborne said: "Now the calcifications within the glands are these really very fine calcifications that can be clustered - sorry, can be scattered and are not clustered because the glands are quite widespread. The calcification we worry about is calcification that is actually within the ducts and the worst sort that we worry about is when the tumour is actually spreading along the duct and that's what we call ductal carcinoma in situ and the surface of the duct falls away and into the lumen of the duct and that calcification is like sort of sludge within a tube, and that's what we call casting calcification. That is the obvious calcification that Dr Kitchener talked about and I would expect a junior doctor to pick that as malignant. Then you get the harder sorts of calcification where it's not as definite and it can be just clustered in certain points. The calcification is somewhat irregular, classically sort of described as needlepoint or crushed stone appearance. Now, if you see a cluster of that you are quite worried. But then we have got an even earlier stage that is really quite hard to pick. What we then look for, and I agree with Dr Kitchener, that you look at the total pattern. Now, when I said that the calcification is essentially unchanged I was talking about this, the fact that there is calcification is fine and is scattered throughout the breast tissue. That pattern is that of the calcification within the glands themselves and that's a benign pattern. I didn't refer to the calcification in one particular area or another particular area. There is this pattern throughout and this is benign. DR KITCHENER: The only problem that I see, I basically in general am in agreement, but one does get to a point where the calcification that is malignant has to be begin somewhere and if we are looking at the very earliest stages of seeing one punctate area of calcification that when you are looking at these things over a series and you start to see one calcification and closer by a second one, although it is not typical of malignant calcification it does have to raise your level of suspicion a touch." (T.110.30-111.11) 88 Where the two doctors differed significantly was in relation to the 2006 mammogram. The most obvious point of difference was whether or not the posterior mass had significantly increased in size between 2004 and 2006. Both doctors agreed that the smaller anterior mass had entirely disappeared by February 2006 which confirmed that it had been a cyst. 89 Doctor Kitchener set out the dimensions of the mass as he saw it in 2006 at 35 by 30 by 28 millimetres. Associate Professor Osborne opined in his report, and in his oral evidence, that the posterior mass in 2006 was approximately the same size as in 2004. Later in his oral evidence he said that the 2006 mass could be marginally bigger. 90 In support of his opinion, Associate Professor Osborne pointed out that one of the disadvantages of mammography is that it is difficult to make measurements based on it. In response, Dr Kitchener said that the difference in size was so obvious that there was no need to engage in any precise measurements, even though he had done so. 91 In order to clarify the question, the 2006 films and the 2004 films were placed on an x-ray machine in court. Film number 3 of the 2006 scans was a CC view. Films 1 and 2 of the 2004 scans were CC views. Doctor Kitchener relied particularly upon a comparison of film number 1 of the 2004 series and film number 3 of the 2006 scans. (T.125.23) Associate Professor Osborne pointed out on the films those parts of the mass which he believed showed that visually there was no change in the size of the mass between the 2004 and 2006 mammograms. 92 As a lay person I found that the comparisons of the size of the mass in the films on which Dr Kitchener relied clearly demonstrated to the naked eye that the 2006 mass was significantly larger. In that regard I appreciate my limitations in that I am not experienced in interpreting mammographic films. I cannot, however, ignore my observation that on a simple visual comparison the mass on the 2006 films appeared significantly larger than that on the 2004 films. 93 Some support for the conclusion of Dr Kitchener on this issue is provided by the evidence of Dr Varnava in relation to the 2006 mammogram. At para 30 he noted that "the previously reported 2.5 cm mass seen in the midline approximately 8 cm from the nipple has increased in size to 3 cm". Even if the other dimensions had remained unchanged, this represents an increase in size of approximately 20%. 94 Further support is provided by Professor Levi, the oncologist qualified on behalf of the plaintiff. In his report of 27 November 2007 (exhibit P) at page 2 Professor Levi had this to say about the 2006 mammogram: "The mammogram of 23rd February 2006 clearly shows an irregular, fairly well circumscribed density within the upper part of the breast centrally. The measurements taken by myself of this mass are 3 by 3.5 cm. I essentially agree with the report of Dr Peter Kitchener in relation to the mammogram of 23 February 2006 that the mass is obvious." 95 The measurements independently taken by Professor Levi coincide with two of those recorded by Dr Kitchener but which were challenged by Associate Professor Osborne. 96 In determining this issue, I have also taken into account my assessment of the respective witnesses. Both doctors strongly supported their respective points of view. I found Dr Kitchener, however, ready to make concessions where appropriate, and to approach the questions with a rather more open mind than Associate Professor Osborne. In the case of Associate Professor Osborne I felt that he was very protective of the BreastScreen procedures and that this did inevitably colour his responses. Generally speaking, although both witnesses sought to assist the Court, I found Dr Kitchener's approach to be more considered and reasonable. 97 A notable feature of the evidence of Dr Kitchener was the rather quiet and deprecatory way in which it was given. On this issue, however, Dr Kitchener became quite animated and not only was the discussion between the doctors vigorous, it was apparent that Dr Kitchener had no doubts about the correctness of his opinion. "WITNESS KITCHENER: This is certainly a true craniocaudal view. So this is a partial view of the same. These two, number one and number two, are craniocaudal and number three and number four are mediolateral. If you just compare the size of the mass there to the size of the mass there, I don't think it requires a measurement to tell the difference. WITNESS OSBORNE: On the contrary. I think if you take that measurement there to that measurement there which is going through one, two, three, four and that measurement there to there, it is still going through one, two, three, four. What I suggested was that they were approximately the same size. I have got no problems that it could be marginally bigger but what I am saying is that this actually appears denser, easier to see, and therefore as it is easier to see one can see the margins more clearly. But if you actually go from there to there and there to there, it is still approximately the same size, but it is denser. HIS HONOUR: I will just continue with Dr Kitchener. You have heard what Professor Osborne says. Do you agree with that? WITNESS KITCHENER: Not at all. If you look at this image there you can see the margins of the mass perfectly clearly. You can see the back of it and the front of it. If there is some discussion of where the top end of it and the bottom end is, you can certainly see the front and back and you can certainly see the front and back there. HIS HONOUR: What about the MLO images it doesn't seem as clear there. WITNESS KITCHENER: I think it is clear enough. There is an anterior margin and there is a posterior margin. You can certainly see an anterior margin down there, and posterior margin down here. HIS HONOUR: You used that to work out your calculations? WITNESS KITCHENER: Yes. This one in particular, there is just no doubt in my mind. HIS HONOUR: You are comparing number one of the 2004 series with number three of the 2006 scans. WITNESS KITCHENER: Yes." (T.124.41-125.29) 98 I cannot accept the opinion of Associate Professor Osborne that the size of the mass in 2006 was approximately the same as in 2004. There is no support for this opinion other than Associate Professor Osborne's own assertion. Leaving aside the assessments of Dr Kitchener and Professor Levi, and my own observation of the mammogram films, this opinion is clearly in conflict with that of Dr Varnava. Dr Varnava's measurement of one of the dimensions showed an increase of at least 20%. In my opinion, a difference of 20% cannot be correctly characterised as "approximately the same size". 99 On this issue I am satisfied that the opinion of Associate Professor Osborne is incorrect and I prefer the evidence of Dr Kitchener. Doctor Kitchener's evidence is substantially supported by that of Professor Levi and as to one measurement at least, by Dr Varnava. It also accords with my own observation of the mammographic scans. Once the opinion of Associate Professor Osborne is rejected, the only guidance which I have is the assessment of Dr Kitchener that the 2006 mammogram showed that the posterior mass had approximately doubled in size since the 2004 mammogram. That is the finding which I make. 100 When the trial started there was an issue between the parties as to whether the tumours in the plaintiff's lungs and brain had metastasised from her breast cancer or whether the tumours in her lungs were a primary cancer which had metastasised to her brain. Relevant to that issue was the fact that the plaintiff had been a heavy smoker until her breast cancer was diagnosed. 101 This issue went away after the report of Professor Bilous (exhibit T) was shown to Professor Tattersall, the oncologist qualified by the defendant. The defendant acknowledged that the tumours in the plaintiff's lungs and brain had metastasised from the breast cancer. 102 Professor Bilous is an expert in tissue pathology. His analysis of the tumours in the plaintiff's breast and lungs confirmed a similarity in their cell structure sufficient to establish that they were linked. The defendant's concession was properly made and was yet another example of the spirit of co-operation which was demonstrated between the parties. It is not without significance that the report from Professor Bilous was obtained by the defendant.

103 The defendant accepted that BreastScreen owed the plaintiff a duty of care. The more difficult question is to articulate the content of that duty. 104 In that regard I accept the submission of the defendant that there is a proper distinction to be drawn between a diagnostic mammogram and a screening mammogram where the screening mammogram is carried out in the context of the BreastScreen Australia process, i.e. as part of a sequence of mammograms taken at two yearly intervals. 105 It follows that I reject the submission on behalf of the plaintiff that, due to the potentially catastrophic consequences which follow from a failure to detect a breast cancer, and the obvious reliance by clients on the accuracy and reliability of the screening process, a heightened standard of care should be applied. I am sure that many women who participate in the BreastScreen program believe that, when they receive the pro forma letter, the presence of cancer has been excluded. That is clearly not the case. The documents which those women sign before undergoing mammographic testing and the pamphlets which are available make it clear that there are significant qualifications applicable when a "no visible evidence of cancer" result is communicated to them. 106 I am sure that the implications of these qualifications are not appreciated by many women who participate in the BreastScreen Australia program. Nevertheless, the defendant is entitled to rely upon those qualifications when the Court comes to formulate what is the content of the duty of care which it has to observe in relation to clients such as the plaintiff who participate in its screening program. 107 I find the content of the defendant's duty of care to be as follows. It had an obligation to provide that level of care and skill in the interpretation of mammograms to be expected from a reasonably competent radiologist in the context of a mammogram screening program. 108 It follows that it is necessary for the plaintiff to establish that there were suspicious features in the 2006 mammogram when compared with the 2002/4 mammograms which sufficiently raised the possibility of malignancy to have obliged the radiologists to recall the plaintiff for further investigation. 109 In determining that question, regard has to be had to the provisions of s 5O of the Civil Liability Act 2002. That section makes provision for the standard of care for professionals as follows: "5O(1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied upon for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted." 110 In applying that section the defendant is entitled to rely upon the opinion of Associate Professor Osborne, given his background as both a clinician and as a senior participant in the BreastScreen program, as representing an approach to mammogram interpretation which was widely accepted in Australia by peer professional opinion as competent professional practice. 111 As I made clear on a number of occasions in the course of the trial, the plaintiff cannot rely upon systemic deficiencies in the BreastScreen program to make out her case. What she has to rely upon to establish breach are the particulars of negligence pleaded and in particular, a failure by the radiologists to recognise that there were suspicious features in the 2006 mammogram which were sufficiently serious by reference to the defendant's own standards (as identified by Associate Professor Osborne) as to require a recall of the plaintiff for further investigation.

Breach of duty 112 Doctor Kitchener identified certain findings on the 2006 mammogram which made him suspicious that a malignancy was present. They were:

(a) A doubling in the size of the mass. (b) The partially indistinct margins of the mass. (c) The increase in size of the posteromedial band. (d) The presence of an anterior band. (e) The presence of calcification within the mass as well as within the bands. (f) Some lobulation laterally to the mass.

He accepted that individually (with the exception of the doubling in size of the mass) these features were not decisive but it was their total effect which led him to form that opinion. 113 Associate Professor Osborne gave evidence in relation to all of those matters (except the increase in the size of the mass) to the effect that such signs were equivocal and were still consistent with a diagnosis of benign breast fibro-cystic changes. At no time did he concede that the calcification was suspicious in appearance. 114 With the evidence in that state, the increase in the size of the mass became a decisive consideration on the question of breach. In that regard I have already found that the mammograms showed that between 2004 and 2006 the mass had approximately doubled in size. Both doctors agreed that there had been no change in the size of the mass between 2002 and 2004. 115 It is clear that Associate Professor Osborne appreciated that if the mass had significantly increased in size between the taking of the two mammograms, this was a matter which should properly have required a recall for further examination. His position was that there had not been any increase in size beyond what he described as marginal. 116 The evidence of Associate Professor Osborne on this issue was: "BARTLEY: Associate Professor, my question really is this. Allow for the moment that Dr Kitchener is right about the increase in size. Forget about the dimensions but let's just allow that Dr Kitchener is right about the proportionate increase in size. Is it your fixed position that that increase in size between 04 and 06 would not necessitate a recall of the patient?

HIS HONOUR: I think for the purposes of the question Professor, assume against your opinion. A hypothetical situation is being put to you. If it be the fact that the mass has doubled in size between 2004 and 2006 then whatever the question is going to be. WITNESS OSBORNE: If there has been a significant increase in size, in other words, if there has been significant change then it is the change that necessitates - that would warrant the recall. BARTLEY: So if Dr Kitchener is right in his opinion about the increase in size of the mass between 04 and 06, then the plaintiff should have been recalled? WITNESS OSBORNE: What you are saying, I can't take away what you are saying from what I am seeing. I will stick by what I have said. If there is significant change in size, yes, it should have been recalled … BARTLEY: And is it your view that a trained radiologist, trained in mammography, viewing the 06 screen alone would not recall? WITNESS OSBORNE: No, that's not what I am saying at all. A trained radiologist seeing 06 alone would recall. BARTLEY: And would only not recall, if I take your opinion correctly, if there was no observed significant increase in size between 04 and 06. Is that what you are saying? WITNESS OSBORNE: If there had been no significant change you would not recall." (T.129.5-50). "BARTLEY: And if it is taken in conjunction with the significant increase in size, does that continue to mandate a no recall? WITNESS OSBORNE: If it was a significant change in size I have already said I would recall. The calcification is coincidental." (T.130.32). 117 The answers of Associate Professor Osborne leave open the question of what he meant by the phrase "significant change in size". I infer from his refusal to accept the dimensions put forward by Dr Kitchener that he would accept that the doubling in size of the mass between 2004 and 2006 would be significant. Since I have found that the mass did so increase, it follows that the effect of Associate Professor Osborne's evidence is that the plaintiff should have been recalled. Breach of duty has been established. 118 Some further assistance on this question is provided by Associate Professor Osborne's explanation of why it was that an increase in the size of the mass between 2004 and 2006 raised a suspicion of malignancy. If the mass was a cyst it would get smaller and ultimately disappear as the plaintiff reached menopause and stopped producing oestrogen. "Cysts peak at the peri-menopausal years. The older the woman, the less oestrogen she is producing and therefore the less likely she is to have cysts." (T.150.15) 119 At the time that the plaintiff underwent the 2006 mammogram, she was within one month of turning 55. While it is clear that the BreastScreen radiologists would not have known whether the plaintiff was menopausal or not, they certainly knew her age and would have been aware she was in an age range where cysts should not have been increasing if menopausal change had or was taking place. In the absence of specific knowledge of the plaintiff's menopausal situation, the increase in the size of the mass should have been taken into account by the radiologists as a suspicious feature. As Dr Kitchener said: "The only addition that I would make in relation to a post menopausal woman with a mass, a mass, whether it is a cyst or not. If something has grown in size it has to be regarded as cancer until you prove it is not." (T.159.19) 120 I have concluded that the plaintiff has established that BreastScreen breached the duty which it owed to her. There was an important change between the 2002/4 and 2006 mammograms in that the mass had increased in size. I have concluded that the assessment of that increase made by Dr Kitchener is reasonably accurate and that the mass had approximately doubled in size. Associate Professor Osborne accepted that if there had been a significant change in the size of the mass, he would have recalled the plaintiff for further investigation. In that regard, he is in agreement with Dr Kitchener. There is no evidence to the contrary. Accordingly, the defence provided by s 5O of the Civil Liability Act is not available to the defendant on this issue.

Causation 121 The first causation question is whether the plaintiff's cancer would have been found had an ultrasound been undertaken in March 2006 following the 2006 mammogram. 122 All of the evidence is to the effect that in March 2006 the tumour was present, but that it would have been smaller. This was the opinion of Dr Kitchener and Associate Professor Osborne and it was the opinion of Professor Bilous. In their various reports, Professors Tattersall and Levi assume the presence of the tumour in 2006 without setting out their reasons for that assumption. 123 The issue which arises is not whether the tumour existed in March 2006, but whether it would have been discovered had an ultrasound of the plaintiff's left breast been carried out at that time. 124 Associate Professor Osborne was of the opinion that the tumour did not originate in the posterior mass. It was his opinion that the tissue that might be the site of the cancer was the band of tissue extending supro-medially which Dr Kitchener had identified (see [85] hereof). Associate Professor Osborne identified this band of tissue on page 5 of his report of 4 September 2008 (part of exhibit 20). His reasons for reaching that conclusion were that there had been no change in the size of the mass between 2002 and 2006 and because in February 2006 the mass did not show evidence of spiculation, a feature which was visible in the 2007 films. 125 His opinion was that as a grade three tumour, it was fast growing. It had probably originated in the supro-medial band of tissue, grown rapidly and become attached to the cystic mass. Associate Professor Osborne did not dispute that by 17 January 2007 when the ultrasound was taken, the tumour did adhere to the cystic mass. 126 It was his opinion that because the tumour had not originated in the cystic mass, an ultrasound carried out in March 2006 may have discovered it by way of an accidental finding but he could not be more definite than that. 127 Doctor Kitchener was of the opinion that the tumour had originated within the posterior mass and that had an ultrasound been carried out in March 2006 the tumour would almost certainly have been discovered. He assessed the likelihood at 90%. 128 Doctor Kitchener explained the basis for his opinion as follows: "WITNESS KITCHENER: … The cyst that was in the breast is significantly smaller than the mass that was seen in the 2006 mammogram. As Professor Osborne said it is obviously accurate to do the measurements on ultrasound but I think there really is little doubt. There's often an under measurement on mammography because of the indistinctness of margins sometimes, but I think this as I say that which was seen at ultrasound is smaller. I think that in itself is evidence that the cancer was in part of this mass that in 2006, now that we know the ultrasound report more likely than not did contain a cystic as well as a solid component. So I believe it started within part of the cyst and then extended out." (T.136.22) "One of the significant parts is my belief that the mass had increased very significantly in size. I measured the mass variously as just under 30 to 37 millimetres in size. The ultrasound shows it as being 19. That is a large enough difference to say that there must have been something in that mass at the time. HIS HONOUR: That is, you mean the tumour? WITNESS KITCHENER: The tumour in 2006 yes." (T.145.3) "WITNESS KITCHENER: Yes it is. The image number fifteen shows that it is definitely contiguous. It is my view that the larger size seen at mammography than the cyst found in the ultrasound a year down the track is a strong indication that the larger mass seen in 2006 already had part of the cancer in it." (T.151.48) 129 Doctor Kitchener was of the opinion that even if the tumour had not been associated with the cyst, it would have arisen within a centimetre from the cyst and it would still have been found on ultrasound in March 2006 (T.142.49). 130 Some support for the opinion of Dr Kitchener is provided by Professor Levi in his report where he says in relation to the ultrasound of 17 January 2007: "On the sonographic study correlating the mammographic density as well as a palpable abnormality there is an approximately 4 by 4 cm irregular shaped solid mass disrupting the usual fascial planes and again consistent with a carcinoma. There was a cystic component which lay along the medial aspect of the mass measuring 2 cms." 131 I have concluded that the opinion of Dr Kitchener on this issue is to be preferred to that of Associate Professor Osborne. My reasons are these. 132 It is common ground that at the time of the ultrasound in January 2007 the tumour and the cystic mass were in contact. Doctor Kitchener's reliance upon the reduction in size of the cystic mass between February 2006 and January 2007 by almost half, i.e. 30-37 millimetres to 19 millimetres, as indicating that something was within it in 2006 is persuasive. Moreover, that proposition was never responded to by Associate Professor Osborne. One of the important factors relied upon by Associate Professor Osborne to justify his theory was the lack of increase in the size of the cystic mass between 2002 and 2006. I have previously rejected that proposition. Finally, the presence of spiculation in January 2007 but not in February 2006 is equivocal. It is equally consistent with the significant increase in size of the tumour between those dates, a matter upon which both doctors agreed. 133 There is also some force in Dr Kitchener's alternative proposition that even if the tumour did not originate in the cystic mass, its point of origin was so close to it (i.e. 1 cm) that it would have been picked up by an ultrasound in any event, had one been conducted in March 2006. In that regard, Associate Professor Osborne did not specify where on the supro-medial band of tissue the tumour had originated. 134 I find that had an ultrasound of the plaintiff's left breast been carried out in March 2006 it would have revealed the presence of the tumour. 135 The second causation question goes to the difference a diagnosis in 2006 would have made to the plaintiff's outcome. 136 As a start point the defendant does not submit that had the plaintiff been recalled for further investigation in March 2006, she would not have undergone all investigations which were recommended to her. The way in which she has followed medical advice and undergone painful procedures as part of the treatment of her breast cancer establishes that she would have done so. 137 There was no material difference between the evidence of Professors Levi and Tattersall as to the survival rates attached to a diagnosis of breast cancer in March 2006, rather than January 2007, and the percentage likelihood of metastasisation. The effect of their combined opinion is that the risk of the plaintiff's breast cancer metastasising between March 2006 and January 2007 increased by approximately 10%. That figure was agreed by the parties in their written submissions. Thereafter, the parties dramatically diverge in their approach. 138 The defendant submits that the Court should apply the decisions of Rufo v Hosking [2004] NSWCA 391, (2004) 61 NSWLR 678 and Dobler v Kenneth Halverson [2007] NSWCA 335 and assess on a percentage basis the extent to which the plaintiff lost a chance of a better outcome by the delay in diagnosis between March 2006 and January 2007. The figure suggested by the defendant is 10.2% as representing the lost chance. 139 Implicit in that submission is the proposition that the breast cancer with its consequential tumours in the lungs and brain is to be regarded as a single indivisible entity. The submission is that because the cancer was already present in February 2006, the only issue is the extent to which the plaintiff's position overall was worsened by the delay in diagnosis. 140 The plaintiff submits that the breast cancer and the metastatic tumours which subsequently developed should be regarded as separate entities. She accepts that the delay in diagnosis increased the chance of the cancer metastasising by 10%. She submits that this establishes that the delay was a cause, not necessarily the cause or the sole cause, of the metastatic tumours in that the delay materially increased the risk of those tumours developing and that that risk eventuated. 141 The plaintiff submits that the metastasised tumours are to be regarded as a separate injury because they do not automatically follow from a diagnosis of breast cancer. They may or may not develop and that is why Professors Tattersall and Levi expressed in percentage terms the chance of such metastasisation occurring. 142 To establish that proposition, the plaintiff relied upon Chappel v Hart (1998) 195 CLR 232. There Gaurdron J cited with approval the well known statement of Dixon J in Betts v Whittingslowe (1945) 71 CLR 637 at 649: "Breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach." 143 Although in the minority in that case, the statement of principle by McHugh J on this issue has been frequently cited with approval: "27 Before the defendant will be held responsible for the plaintiff's injury, the plaintiff must prove that the defendant's conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring." 144 The Court was referred to Naxakis v Western General Hospital & Anor (1999) 197 CLR 269 at 279 where Gaudron J quoted with approval the statement of principle by McHugh in Chappel v Hart in the context of rejecting the defendant's "loss of a chance" argument. Her Honour, having quoted the statement of principle by McHugh J, said: "And in that situation, the trier of fact - in this case a jury - is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event."

Callinan J commented to similar effect. 145 Applying those principles, the plaintiff submitted that the delay in diagnosis had increased the risk of the breast cancer metastasising, that risk had eventuated and consequently causation had been established so that the defendant should bear responsibility for the whole of the plaintiff's damage, not just a percentage of it. 146 Sections 5D and 5E of the Civil Liability Act apply. They read as follows: "5D (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 147 Neither side referred to those sections, nor were any submissions made in relation to them. Both sides seemed to assume that the principles embodied in s 5D of the Civil Liability Act were in accord with the common law. That is certainly how I understand these sections. If there were any doubt on this issue, it was resolved in Ruddock v Taylor [2003] NSWCA 262, (2003) 58 NSWLR 269 at 286 where Ipp JA explained the section and its purpose: "85 As Professor Jane Stapelton has explained in her article "Cause-in-Fact and the Scope of Liability for Consequences" (2003) 119 Law Quarterly Review 388, there are two fundamental questions involved in the determination of causation in tort. 86 The first relates to the factual aspect of causation, namely, the aspect that is concerned with whether the negligent conduct in question played a part in bringing about the harm, the subject of the claim. Professor Stapelton argues (at 389) that this inquiry involves determining whether there was, on the part the defendant, "historical involvement in [the plaintiff] suffering actionable damage". 87 The second aspect concerns "the 'appropriate' scope of liability for the consequences of tortious conduct" (Stapelton, op cit, at 411). In other words, the ultimate question to be answered when addressing the second aspect is a normative one, namely, whether the defendant ought to be held liable to pay damages for that harm. This inquiry may involve normative issues of a general kind, or issues such as whether the so-called evidentiary gap should be bridged (in the sense explained in Bonnington Castings Ltd v Wardlaw [1956] AC 613), whether the defendant materially increased the risk (in the sense explained in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32), and whether the damage claimed is too remote. … 89 The approach to causation that I have set out forms the basis of s 5D of the Civil Liability Amendment (Personal Responsibility) Act 2002. This Act does not govern the present action but, in my view, the principles it embodies in regard to causation are in accord with the common law." 148 Since the plaintiff is relying upon well established common law principles as set out in Chappel v Hart and Naxakis, the "scope of liability" test in s 5D(1)(b) does not stand in the way of the plaintiff establishing causation. 149 Some assistance in understanding when the principle in Chappel v Hart and Naxakis applies and when it does not, is provided by Spigelman CJ in Seltsam Pty Limited v McGuiness & Anor [2000] NSWCA 29, (2000) 49 NSWLR 262 at 279. That was a dust disease case dealing with the use which a trial judge could make of epidemiological studies to establish causation of a particular asbestos related disease. Having set out the quotation from McHugh J in Chappel v Hart and having referred to Naxakis, his Honour said:

"107 The starting point of McHugh J's analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, "and that risk had eventuated".

108 This starting point is the very matter in issue in the present case. Was there evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had "eventuated" in the specific disease of the respondent? 109 If there was such evidence then, to use the words of both Gaudron J and Callinan J the tribunal of fact was "entitled" to find that the conduct which increased risk, materially contributed to the injury - entitled, but not, of course, required to so find." 150 The submission put on behalf of the plaintiff should be accepted. The evidence clearly supports the application of the causation principle stated by McHugh J in Chappel v Hart. The uncontradicted evidence of Professors Levi and Tattersall is that the delay in diagnosis increased the risk of metastasisation by 10%. This was not a case where metastasisation was likely in any event and the plaintiff had merely lost the chance of a better outcome. The events which occurred, i.e. the development of tumours in the plaintiff's lungs and brain, occurred within the very area of risk which had been increased by the delay in diagnosis. 151 I find that there is no scope for the application of the principle in Rufo v Hosking and that the plaintiff has established that the defendant's conduct caused the tumours from which she now suffers in her lungs and brain.

Damages 152 In accordance with the spirit of co-operation which has prevailed in this matter, a considerable level of agreement was reached on the issue of damages. The only outstanding heads of damages were non-economic loss and future loss of earning capacity. In relation to future loss of earning capacity, the dispute related to the amounts which were to be deducted for the plaintiff's living expenses during the lost years. 153 The parties agreed that the plaintiff's life expectancy should be reduced by 10 years to take into account her history of smoking. The figure relied upon by the parties was therefore 21.46 years. The plaintiff's annual net income was agreed at $53,350. It was agreed that without her illness, the plaintiff would have worked to age 65, i.e. 18 March 2016. The plaintiff's estimated date of death was agreed at 23 December 2008. 154 In relation to non-economic loss, the defendant submitted a figure of 40% of a most extreme case. The plaintiff submitted that the plaintiff's situation should be regarded as a most extreme case and compensated accordingly. At the time of trial the maximum amount payable for non-economic loss under the Civil Liability Act was $450,000. 155 In assessing non-economic loss, I apply the principles set out by the Court of Appeal in Dell v Dalton (1991) 23 NSWLR 528. I do not take as my start point the most extreme case and put that "at the top of some grizzly table of catastrophes". In accordance with that decision, I have regard to where on a table, which includes at the top very serious cases, the plaintiff's situation most aptly fits. I have regard to the fact that included in the definition of "non-economic loss" is pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement. 156 In assessing non-economic loss, I disregard those aspects of the plaintiff's evidence which relate purely to the treatment of her breast cancer per se. Since the tumour was present in February 2006, it is reasonable to suppose that she would have undergone the various treatments described by her in her evidence even if the condition had been diagnosed in March 2006. 157 I have regard to the series of emotional shocks and psychological set backs which the plaintiff commenced to suffer from 13 May 2008 when she first learned that she had multiple tumours in her lungs. I have regard to the sadness and loss which the plaintiff is experiencing when she contemplates the years which have been taken from her and the experiences which she will never have, e.g. the enjoyment of her grandchildren. 158 I have regard to the increasing disability which the plaintiff is experiencing, as a result of the progression of the disease, and the drastic treatments which she has to undergo in order to control it. I have regard to the frustration which the plaintiff feels because of her dependence on others and her complete inability to do things now which used to be well within her capacity. I have regard to the strains which her illness has placed on her relationship with her partner, Glen. 159 I have regard to the future progress of her disease. The plaintiff told the Court in a frank and sincere way that she is afraid of what is to come. The effects of her condition will gradually increase and she will need to be given large doses of painkillers with an ever-increasing reduction in her quality of life. The plaintiff realises and is trying to come to terms with the fact that there is no hope of a cure and that she must live her life as best as she can between now and the end of December when medical opinion assesses that she will die. 160 As the disease follows its inevitable course, the plaintiff's level of pain will increase despite the benefit of painkillers. Her final weeks will involve considerable pain and suffering. 161 Despite these considerations, tragic as they are, I place the plaintiff in a different category to those persons who suffer recalcitrant pain and suffering over many years, such as paraplegics, quadriplegics, burn victims and those others, who are correctly classified as being very serious cases. The plaintiff does not satisfy the requirement of a most extreme case. Her suffering though intense will mercifully be of comparatively short duration. 162 Doing the best I can, and taking into account all of the medical evidence and my observations of the plaintiff, I assess her at 55% of a most extreme case. That gives to her an entitlement to damages for non-economic loss of $247,500. 163 It was agreed by the parties that in relation to out-of-pocket expenses, the plaintiff should only be entitled to those which were directly referable to costs associated with treatment related to the tumours in her lungs and brain. Costs associated with the treatment of her breast cancer were not to be included. The figure agreed on by the parties for this period is $2702.05. I assume that this figure relates to the past. Somewhat surprisingly, no claim or allowance appears to have been made for the period up to 23 December 2008. 164 In relation to domestic assistance, the parties have agreed an hourly rate of $22.75. The figure agreed by the parties for gratuitous domestic assistance up to 23 December 2008 is $13,923. 165 The parties have agreed that the plaintiff will require institutional care from 17 December 2008 at a cost of $580 per day. The figure agreed upon is $4,060. 166 In relation to past economic loss, the parties have agreed an amount of $32,740.80. Past loss of superannuation has been agreed at $3,866.30. 167 In relation to future loss of earning capacity, the issue between the parties was what items were to be encompassed in the concept of "living expenses". The defendant relied upon the following unreported extract from the Court of Appeal in Commonwealth of Australia v McLean (NSWCA - 31.12.1996): "DEDUCTION FOR LIVING EXPENSES Damages are recoverable for loss of earning capacity during the "lost years" that is, the years by which his life expectancy has been shortened: See Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563; Fitch v Hyde-Cates (1982) 150 CLR 482. It is well established that in awarding damages for this loss, it is necessary to deduct the expenditures which will no longer have to be made because the plaintiff will be dead. These it has been said are the plaintiff's probable living expenses in those years. The issue which arose at the trial is what should be included in "living expenses"? The defendant submitted that expenditure for "pleasures" should also be deducted and relied upon O'Shea v Sullivan (unreported, Smart J, 6 May 1995). The judge ruled that only the plaintiff's ordinary living expenses should be deducted and not his expenditure on personal pleasures such as entertainment. Thus the items to be deducted including expenses such as rent, food, clothes, fares, gas, electricity and other accommodation expenses. The judge directed the jury accordingly. In Fitch v Hyde-Cates , Mason J at 297 referred to the rationale for the deduction of living expenses in these terms: "He recovers damages for his loss of earning capacity which is equated with his future earnings less his probable living expenses in the lost years, for without that expenditure he would not have continued to exercise his earning capacity, and it is after deduction of that expenditure that there remains a surplus which he could spend as he wished on his dependants or otherwise." Once the rationale for the deduction is understood, it is clear that there should be no deduction for expenditure on "pleasures". If O'Shea v Sullivan is to the contrary, it was wrongly decided. This ground of appeal has not been established." 168 The plaintiff was cross-examined as to her "living expenses". The defendant's calculations were based on this evidence, except in two respects. The defendant challenged the plaintiff's evidence that food for her and her partner amounted to $200 per week, being a cost which they shared. It was submitted that this was an under estimate by the plaintiff and that the real cost of their food would have been $350 per week. 169 I do not accept this submission. It is well known that buying for two means that economies of scale can be achieved so that the overall cost is lower than if one were buying for one person. I found the plaintiff to be a reliable witness and I accept her estimate of the cost of food to be $100 per week. 170 The other aspect of the plaintiff's evidence that was challenged by the defendant was her estimate that she spent very little on clothes for herself. It was submitted by the defendant that given the plaintiff's job as a secretary in a law office and given her well-groomed appearance in Court, some greater personal expenditure would have been needed for such items as clothes and shoes, in order for the plaintiff to maintain an appropriate professional appearance in her job. It seems to me that the submission does have force and I am prepared to accept the defendant's submission that $75 per week should be taken into account for this type of expenditure. 171 The matter of principle on which the plaintiff and defendant were at issue was how the plaintiff's mortgage repayments should be treated. The defendant submitted that they should be taken into account as part of her living expenses, just like rent. The plaintiff submitted that they should not be taken into account since they were a payment towards the accumulation of a capital asset, i.e. the house. The plaintiff's evidence was that she made the whole of the mortgage payments and that this was not shared. 172 I have been unsuccessful in finding any authority on this question, other than the sort of general statement of principle set out in McLean above. Quite clearly, the plaintiff needed accommodation in order to enable her to attend work and earn her wages. The payment of the mortgage is analogous to the payment of rent in that it was a necessary payment in order to maintain that accommodation. Had the plaintiff ceased to make mortgage payments, she would have lost her accommodation. 173 In the absence of any evidence as to what the cost of renting these premises would have been, the only evidence which I have as to the cost of the plaintiff's accommodation is that her weekly mortgage payments were $364. I propose to take those into account as part of her living expenses. 174 This means that the plaintiff's claim for future loss of earning capacity for the lost years is $276.41 per week. 175 There is another matter which also needs to be taken into account when calculating the plaintiff's loss of future earning capacity. Normally, one would apply a discount for vicissitudes. Since the period of time is relatively short, i.e. 7¼ years, it would, in my opinion, be unfair to apply the conventional 15% for vicissitudes. Something less than that should be applied. On the other hand, the evidence of Professor Tattersall in his report of 11 September 2008 (part of exhibit 19), was that taking into account her breast cancer alone, the plaintiff would have had an 81% chance of achieving a 10 year survival rate. In other words, there was a very real vicissitude which ought be taken into account when calculating the plaintiff's future loss of earning capacity. 176 Given the relatively short period of time, i.e. 7¼ years when taking into account the actual vicissitude identified by Professor Tattersall and the possibility of other unknown vicissitudes occurring, I propose to apply a discount of 20% to this head of damage. Using that approach, I assess the plaintiff's damages for future loss of earning capacity at $70,418. Applying the same discount, the plaintiff's entitlement to future superannuation for the lost years is $30,780. 177 In summary, my assessment of damages is as follows: General damages $ 247,500.00 Out-of-pocket expenses $ 2,702.05 Domestic assistance $ 13,923.00 Institutional care $ 4,060.00 Past economic loss $ 32,740.80 Past superannuation loss $ 3,866.30 Future loss of earning capacity $ 70,418.00 Future superannuation loss $ 30,780.00 Total $ 405,990.15

Conclusion 178 The orders which I make are as follows:

(1) There will be a judgment in favour of the plaintiff against the defendant in the amount of $405,990.15.

(2) The defendant is to pay the plaintiff's costs of these proceedings.

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