Plaintiff v Defendant

Supreme Court of Victoria|2012-10-23|Before: J FORREST J

TORTS - Negligence - Medical Practitioners - Q fever - Standard of care - Provision of adequate advice - Failure to recall or follow up patient - Part X Wrongs Act 1958 (Vic) ss 48, 49, 50, 58, 59, 60 - Peer professional opinion defence.

1 This case primarily concerns the legal obligations of a doctor to recall a patient who does not return for further testing or consultation despite being asked to do so.

2 The plaintiff, Mr Stephen Grinham, sought damages from his former employer, Tabro Meats Pty Ltd,[1] as a result of contracting the Q fever virus whilst working at its Lance Creek abattoir[2] between 2002 and 2006. He settled his claim in the course of the trial.

3 That left Tabro's third party proceeding against Dr Catherine Murray, Mr Grinham's general practitioner at the Wonthaggi Medical Clinic[3] in 2002, to be determined. In addition, the Victorian WorkCover Authority[4] instituted proceedings under s 138 of the Accident Compensation Act 1985 (Vic)[5] seeking the recovery of payments of compensation it had made to Mr Grinham from Dr Murray.

4 The allegations of negligence made against Dr Murray in the third party proceeding and in the s 138 recovery proceeding are identical.

5 In 2002, Mr Grinham attended Dr Murray's clinic for immunisation against the Q fever virus. Vaccination could only be carried out if he tested negative to the virus. Testing demonstrated what was described by the pathologist as a low positive, now recognised as a false positive.

6 Dr Murray told Mr Grinham that the tests were inconclusive and he could not be vaccinated. She asked him to re-attend the clinic in one month's time after further testing. Mr Grinham did neither and in 2006 he was struck down by the virus which he must have acquired from exposure earlier that year at the abattoir.

7 It is alleged by Tabro and VWA that Dr Murray was negligent in her provision of advice as to the seriousness of the situation and in failing to recall Mr Grinham when he did not re-attend the clinic or undergo the requested pathology test.

8 I have concluded that Dr Murray's advice was reasonable and that she did not breach her duty in not following up on Mr Grinham.

9 Prior to the commencement of the trial, I ordered that the VWA proceeding be heard at the same time as the primary trial.

10 The primary trial was originally to be determined by a jury. When the case was called on, senior counsel for Dr Murray made an unheralded and unusual oral application, asserting reliance on s 18 of the Civil Procedure Act 2010 (Vic).[6] Ultimately counsel did not proceed with the application but it achieved a couple of things: there was a flurry of activity with the statements of claim of Tabro and VWA against Dr Murray narrowed to four particulars of negligence and the parties' agreement that the action proceed before a judge alone.

11 The trial continued for three days before Mr Grinham settled his claim with Tabro. He gave evidence and called two expert witnesses, Dr Jennens and Associate Professor Eisen. After Mr Grinham's case had been resolved, Tabro called two witnesses in its case against Dr Murray: its payroll manager, Mrs Lindsay Wright and Associate Professor Rawlin, a general practitioner who gave opinion evidence as to the appropriate practice of a general practitioner in Dr Murray's position.

12 Dr Murray gave evidence and called her mentor at the Wonthaggi clinic, Dr Hackett. Three general practitioners also gave opinion evidence as to the appropriateness or otherwise of Dr Murray's management of Mr Grinham: Drs Bills, Oberklaid and Shapero. Each of the parties tendered a number of documents relevant to the question of advice and follow up by Dr Murray.

13 VWA did not lead any viva voce evidence but tendered medical and accounting reports relevant to the quantum of its claim.

14 At the conclusion of the trial, one evidentiary ruling remained outstanding which I promised to deliver as part of this judgment. In the course of his evidence, Dr Shapero was given an article apparently extracted from the September 2002 edition of the Journal of Clinical Microbiology headed "Evaluation of a Novel Commercial Enzyme-Linked Immunosorbent Assay detecting Coxiella Burnetii - specific immunoglobin G for Q Fever pre-vaccination screening and diagnosis".[8] Dr Shapero was then asked to express an opinion about parts of the article which counsel then sought to tender.[9] In cross-examination, it emerged that the article had in fact been obtained by the lawyers for Dr Murray and then handed to Dr Shapero that morning, or to put it bluntly, dumped on him. He, did not subscribe to the journal, had no knowledge of the article and had seen it for the first time immediately prior to giving evidence. Moreover, he did not have the opportunity to read it thoroughly or take it in.[10] He said of the journal that he would "be extremely surprised if there was one [of his colleagues] who ever subscribed to it".[11]

15 The article is patently inadmissible, if indeed it be probative. It is not open to a party to just hand an extract from a medical journal to an expert and then have the witness adopt its contents when it has not formed any part of his research or study for the purpose of expressing the opinion in Court. The vices of this form of tender are manifold: hearsay and ambush being just two that come readily to mind. Even if it was a paper the expert had relied upon, its tender would still be problematic. I reject the tender of the article.

16 Tabro's entitlement to contribution turns upon establishing liability on the part of Dr Murray as set out in s 23B(1) of the Wrongs Act 1958 (Vic):[12]

A person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage.

17 Section 138 of the ACA provides VWA with a right of indemnity in relation to payments of compensation. That right is dependent upon it being established that there are "circumstances creating a liability in a third party (here Dr Murray) to pay damages".[13] If such a liability is established, then the level of indemnity is calculated pursuant to s 138(3).

18 Accordingly, in both claims the question is whether Dr Murray is liable for the injuries and loss sustained by Mr Grinham. The claims are confined to allegations of negligence. A negative finding ends the inquiry. A positive finding in the claim for contribution under the Wrongs Act requires a determination of a "just and equitable" allowance for the responsibility of Dr Murray (which may extend to a complete indemnity) as against that of Tabro. The formula contained in s 138(3)(b) of the ACA requires a determination of the percentage responsibility of the Dr Murray's acts or omissions which have caused or contributed to the injury.

19 Q fever is caused by an organism known as coxiella burnetii. It exists in a variety of domestic and wild animals and can be carried by an animal without it displaying any symptoms. The organism is highly contagious within domestic herds. It can lead to human infection by aerosol transmission of droplets and is often encountered during the slaughter and processing of infected animals with the giving off of fine mists in the course of the handling of the stock or the slaughtered beast. Indirect exposure can also occur from infected dust. The virus is extremely infectious and has an incubation period of between 14 and 60 days.[14]

20 An experienced infectious diseases physician, Dr Eisen, described Q fever as the most infectious organism in the world.[15] Although there are not a large number of Q fever cases in Australia it is notorious as a communicable disease amongst abattoir workers.

21 Q fever has for the past twenty years been a well recognised condition notorious in its association with persons working in the livestock industry and particularly meat workers. It is a serious disease[16] and can produce very nasty symptoms - acute fever, chills and profuse sweating akin to those experienced during a bout of influenza. In its most virulent form the virus can produce symptoms for a number of weeks. In some cases there may be no symptoms at all and in others the prolonged period of acute infection may involve hospitalisation (as happened with Mr Grinham) and result, in the worst case (about 1% of cases), in chronic endocarditis.[17] A very small percentage of people affected with Q fever can retain the antigen and have persisting symptoms.[18] A larger proportion (up to 20%), which includes Mr Grinham, can develop Q fever syndrome, which can result in a perpetuation of the disease's symptoms.[19] This syndrome has features in common with other syndromes following virus infections such as Ross River fever and glandular fever.

22 Determining whether a person has a past exposure to Q fever is a three-step process - obtaining a patient's history (usually through a questionnaire), skin test and serology test. If the tests prove negative then a Q fever vaccine can be administered. The vaccination for Q fever is extremely effective, however a positive result precludes vaccination because performing such a vaccination may pose serious risks to the patient's health.[20]

23 There was an abundance of information published prior to 2002 relating to the risks posed by Q fever. The Australian Meat and Livestock Corporation published a Q fever information kit for the Australian Meat Industry.[21] National guidelines for health and safety in the meat industry were published by the Australian Meat Industry Employees Union. In September 2001, WorkSafe published a guidance note entitled "Q fever prevention".[22] It set out a number of steps that could be taken to reduce or manage the risk of employees contracting Q fever. These include the implementation of:

a vaccination program that offers employees the opportunity to be screened and vaccinated against Q fever. Employees should seek expert medical advice prior to implementing such a program.[23]

This information kit also advised employers to adopt workplace design and safe work practices including on the need to:

Inform workers about Q fever, its characteristics, and the nature of the risks and train them on the correct use of control measures adopted at the workplace.[24]

24 The following are my findings of fact on background matters.

25 Mr Grinham was born in Bendigo on 21 October 1963. He was brought up in Wonthaggi and educated just short of Year 10. Subsequently he worked in basic labouring tasks and undertook some further studies as part of the New Enterprise Incentive Scheme.

26 On 22 March 2002, Mr Grinham obtained employment with Tabro as a cleaner. Such employment ceased in June 2004 when he elected to look for alternative employment.

27 The abattoir is situated about eight or nine kilometres outside Wonthaggi and in 2002 it employed approximately 120 people.[25]

28 In March 2002, Mr Grinham applied for a job at Tabro.[26] He completed an employment application on 20 March 2002 and started work shortly afterwards. There is no mention of Q fever in the application form.[27]

29 In this first stint of employment (up to June 2004), Mr Grinham worked as a cleaner on the floor of the abattoir. He worked a 40 hour week and would commence work after the slaughtering tasks had been completed, which was usually around 3.30pm. He described his role as a cleaner in the following exchange:

All right. Now, that clean up, what did that involve doing?---Um, that involved waiting till the, ah, the day's kill had finished and the kill floor workers had left and we would go in and clean up the whole place, ah, the kill floor, ah, and after we'd finished the kill floor we'd usually end up doing the boning room.

The evisceration table, is that in the kill floor or the - - - ?---Ah, yes, the kill floor.

Would you clean that?---Yes.

How would you clean that?---We'd clean it with, um, hoses and special chemicals out of a machine we had to spray onto every - all the surfaces to sterilise them. Just basic things like that. A lot of hosing down and - - - [28]

30 Mr Grinham had been working for about one month at the abattoir when he heard other workers discussing Q fever.[29] He approached Mrs Wright in the payroll office who told him that he was in a low risk area and that it was up to him if he wanted to be tested.[30] He said that he wanted to be tested because of the nature of the work at the abattoir.

31 Mr Grinham had been a patient of the Wonthaggi Medical Clinic (having seen doctors other than Dr Murray) prior to 2002. In late April 2002, he saw Dr Murray when he attended the Wonthaggi hospital in relation to an injury to his finger sustained whilst playing football with his children.

32 On 26 April, 2 May and 9 May 2002, he attended the clinic and was seen by Dr Murray for a vaccination for Q fever. On 8 May, a pathology serology test for Q fever was returned which described the results as being low positive. I will return to those consultations in greater detail shortly.

33 Mr Grinham continued to work at the abattoir and after his visits to the clinic he told Mrs Wright that he had tested positive.[31]

34 After ceasing work in June 2004, Mr Grinham returned to Tabro in September 2004.[32] On 2 September, prior to recommencing work, he was interviewed by Mr Ray Butler, a Tabro employee, in an office at the abattoir.[33] He completed a six page form entitled "[e]mployment application and declaration".[34] Relevantly he gave the following answers in the form of a tick:

WOULD YOU BE PREPARED TO TAKE A MEDICAL EXAMINATION - YES

ALL EMPLOYEES OF TABRO MEATS PTY LTD MUST BE VACCINATED AGAINST Q FEVER. HAVE YOU HAD A Q FEVER VACCINATION? - NO.

IF NOT, WOULD YOU BE PREPARED TO HAVE A Q FEVER VACCINATION? - Neither the [YES] nor [NO] box was ticked.

35 On the next day, Mr Grinham was sent by Tabro to Dr Kiss, a local general practitioner, for a medical examination unconnected with Q fever, namely, whether he met the health requirements imposed by the Australian Quarantine and Inspection Service for working in abattoirs.[35] No assessment of his Q fever status was carried out.[36]

36 Between September 2004 and February 2006, Mr Grinham worked as a knife hand commencing work at 6.30am and working through until about 3.00pm depending on the volume of work. He spent most days at the evisceration table where the body parts and internal organs of slaughtered cattle were distributed onto tables or down chutes. Tabro provided him with "whites", including gumboots, gloves and a hairnet but he was not provided with any type of mask or face protection. He described his employment duties as follows:

The cows are gutted and the guts is spilled out onto a big metal slatted table, stainless steel, which goes around continuously like that [demonstrates]. Then the various parts - the organs are cut off, and put to one side, and I had to sort the offal and send it down a certain chute, cut off the - well we just called them calf bags, the aborted calves, and they had to go over the other side, they went down another chute, and they bled them, and the guts - and I had to send the paunches, the stomaches, down another chute to the shit room, for want of a better term, yes.[37]

37 On 27 February 2006, Mr Grinham developed symptoms of dizziness and nausea[38] and on 1 March 2006, he attended the clinic with a history of lethargy and pain. Testing returned a low positive to Q fever and then on 26 March 2006, a positive result for Q fever with the comment that "evidence suggests recent infection".[39] The significant increase in the titre levels of these tests confirmed the diagnosis of acute Q fever virus.

38 The Q fever resulted in acute symptoms and Mr Grinham was hospitalised, initially, at the Waverley Hospital and then for one week at the Dandenong Hospital.[40]

39 It was agreed, generally, by the expert medical practitioners that this type of work was "high risk" for Q fever workers. The rider that anyone, who is not positive to the disease, present at an abattoir runs the risk of contracting the disease.

40 Although Mr Grinham's Q fever infection has resolved, he now suffers from post-Q fever syndrome which has incapacitated him for work and many daily activities.[41]

41 It is clear that Mr Grinham contracted Q fever as a result of his work at the abattoir.[42] It is also highly probable that the Q fever virus was transmitted as a result of his second period of employment, most likely in early 2006.

42 In 2006, Mr Grinham was diagnosed with Hepatitis C which was confirmed by a liver biopsy in 2007 which demonstrated hepatic fibrosis.[43] This finding has no relationship to his work at the abattoir.

43 There was unanimity amongst the doctors with infectious diseases expertise that workers in an abattoir face the risk of contracting Q fever. Both the job as a cleaner and on the evisceration table carried that risk. Dr Jennens was of the view, which I accept, that the evisceration work, with repetitive exposure to fluids, blood and entrails of the slaughtered beast carried a higher risk of infection than the cleaning job. He qualified that position by pointing out that anyone who worked at an abattoir was at risk.[44]

F. Did Dr Murray breach her duty of care to Mr Grinham?

(1) The background to Dr Murray's consultations with Mr Grinham

44 Dr Murray completed her medical degree at Monash University in 1997. Subsequently, she worked as an intern in Alice Springs for a year and then at the Bendigo Hospital. In 2001, she obtained employment at the clinic as a "General Practice training registrar".[45]

45 Prior to Mr Grinham, Dr Murray had not encountered a patient with Q fever, or potential exposure to Q fever.[46] She was aware that it was an infection that could cause quite a serious illness and that the immunisation by vaccine was lifelong.[47]

46 One of the partners in the clinic was Dr Hackett who had familiarity with the abattoir's Q fever inoculation program. He was also Dr Murray's allocated supervisor[48] and had commenced work at the clinic in 1996. In approximately 1999, he became a partner and as part of his practice, from time to time he dealt with meatworkers who had contracted Q fever. In approximately 1997, he approached Tabro's management in relation to carrying out routine Q fever vaccinations, as he had done when he was a general practitioner in northern New South Wales.[49] He commenced the routine vaccinations at Tabro later that year and continued to do so until 1999. In addition to his own experience in vaccinating for Q fever and treating Q fever patients, he attended a seminar conducted by Dr Kath Taylor of the Department of Health - a recognised expert in Q fever[50] and on occasions consulted her for advice.[51]

47 Tabro did not conduct any pre-employment medical examination nor provide Mr Grinham with any advice concerning Q fever and the risk posed by working at the abattoir.[52] Mrs Wright, the payroll officer, would keep a list of new employees who wanted Q fever vaccinations, and when a suitable number was reached a general practitioner (initially Dr Hackett) would come to the abattoir and test the workers - if negative, they would be vaccinated.[53] There was a considerable difference in the accounts of the practice at Tabro as between Dr Hackett and Mrs Wright: however, it does not need to be resolved for the purpose of this determination.

48 There was no disagreement between Mr Grinham and Dr Murray in relation to the events of the first consultation on 26 April 2002 which are summarised in the clinical notes[54] as follows:

Seen by me last week with injured finger playing football with children now deformity to 5th PIP ?# dislocation.

Xray today shows #distal end of prox Phalanx and dislocation.

refer to JC.

Wants Qfever vaccination as works at Tabro. Discuss with JH for serology and skin test on 2/5/02.

Actions:

Letter written to Mr John Crellin - re. referral

Pathology requested: Q fever serology.

49 Dr Murray extrapolated on the notes which were made contemporaneously.[55] She had seen Mr Grinham at the Wonthaggi hospital in relation to his finger injury and after the review of the x-rays, she referred him to Mr Crellin, an orthopaedic surgeon.[56] She discussed with Dr Hackett the appropriate course and it was determined that Mr Grinham undergo a blood test for Q fever and that Dr Murray conduct a skin test within a week or so.[57] Mr Grinham was given a pathology request and an appointment was made for him to return on 2 May . The pathology slip shows that blood was taken from Mr Grinham on 26 April 2002. [58]

50 Mr Grinham's evidence as to the 2 May and 9 May consultations[59] cannot be reconciled with either the contemporaneous notes of Dr Murray or the evidence of Drs Murray and Hackett.[60] Mr Grinham's recollection of the attendances is either confined to the third consultation or results from a conflation of the consultations. He could only recall having returned to the clinic on one further occasion and at that time was seen solely by Dr Hackett who told him that he had returned a low positive (this could only have been on 9 May as the pathology results were not available on 2 May) and that he could not be vaccinated.[61] His evidence as to the advice he was given at the last consultation was that Dr Hackett advised him of the results - the skin test was negative but the blood test had come back low positive.[62] According to Mr Grinham, Dr Hackett, based on that result, was not prepared to carry out a vaccination.[63] He could not recall being given any other advice nor being given a pathology slip and being asked to return to the clinic for further blood tests.[64] He denied that Dr Murray was present and said that any advice given to him was by Dr Hackett.[65] He accepted that he may be mistaken in his recollection of these consultations. His evidence as to Dr Murray's role is inconsistent with his answers to interrogatories[66] and, importantly, inconsistent with the clinical notes, to which I now turn.

51 The clinical notes of 2 May of Dr Murray read as follows:

[S]een by Mr Crellin, he said nothing to be done for finger. Given Q fever skin test, 0.1ml of skin test diluted in 30mls saline, then 0.1ml injected intradermally as instructed. Pt to return in 7-10 days for reading. Given questionnaire to read. Will discuss at next appt.[67]

52 Dr Murray confirmed that the clinical notes were an accurate account of this consultation, elaborating that the purpose of this appointment was to conduct the skin test. This was carried out under the supervision of Dr Hackett who took part (at least to some extent) in the consultation with Mr Grinham.[68]

53 The Q fever employee questionnaire[69] provided to Mr Grinham asked a series of questions about previous diagnosis, screening and vaccination (with results), potential exposure to animal transmission of Q fever and as to previous illnesses consistent with Q fever symptoms. Although the form was not retained the notes record a negative response to the various questions.[70]

54 Dr Hackett's evidence with respect to this consultation, in substance, confirmed what had been said in evidence by Dr Murray. Dr Hackett recalled supervising the administration of the skin test and then discussing with Dr Murray the need to have the patient return a week later for the results of the skin test and the blood test as well as the questionnaire.[71]

55 Dr Murray did not make the return appointment for 9 May herself. The practice at the clinic was to advise the patient to speak to one of the receptionists and to require the patient to organise the appointment in conformity with the doctor's recommendation.[72] The patient would then make appropriate arrangements (as Mr Grinham apparently did in relation to the further appointment of 9 May) and be booked in for that time and date. Dr Murray explained that if the patient then failed to re-attend on the scheduled date her usual practice was, on the date of the appointment, to consider whether the patient should be followed up and asked to return.[73] She agreed, in cross-examination, that one of the issues relevant to follow up in this scenario was the potential seriousness of the condition.[74]

56 On 8 May, the clinic received the results of the serology tests: described as "coxtella burnetii serology", the antibody was noted as "phase II", with type "total". The method of analysis was CFT and the titre value was 2.5 with the result described as "low positive".[75]

57 On the following day, 9 May, Mr Grinham re-attended the clinic and was again seen by Dr Murray, and at times Dr Hackett also took part in the consultation.

58 The clinical note made by Dr Murray reads as follows:

[S]kin test neg, history neg, serology low pos, discussed with JH, seek further advice from Dr Kath Taylor 96374127, not for vaccination. re-test in one month - both skin test and serology.

Actions: pathology requested: q fever serology.[76]

59 Dr Murray met Mr Grinham in the waiting room and accompanied him to the consulting room. She opened up his electronic file, noting the serology result as a low positive and concluded that she did not have the expertise to read the skin test. She went to see Dr Hackett,[77] with whom she discussed the skin test, the serology result and the questionnaire - the three parts of pre-vaccination screening.[78] The skin test had returned negative but there was a low positive for the serology test. Dr Hackett suggested that she call Dr Kath Taylor of the Department of Health - an expert in Q fever.[79] She left the consulting room and rang Dr Taylor, who told her:

that we couldn't comment on his immune status based on that result and that she suggested re-testing both the skin test and the serology in one month's time, and he couldn't be immunised at that point.[80]

She then returned to the consulting room and gave the following advice to Mr Grinham:

that we couldn't say one way or the other whether he was immune to Q fever and that further testing was required... I explained to the patient that I would give him a pathology form and he needed to hang onto it and have the test in one month's time and I explained that he would need to make an appointment in one month's time to come back to see me, so that I could again repeat the skin test in my rooms.[81]

Mr Grinham was given a pathology slip requiring him to undergo a further blood test and told to make an appointment in one month's time so that a second skin test could be performed.[82]

60 Dr Hackett said that he discussed the results with Mr Grinham and that Dr Murray asked him to verify the skin test result and to give an opinion on the blood test result. Dr Hackett also agreed that he accompanied Dr Murray back to the consulting room[83] where he told Mr Grinham that:

... the low positive blood test result meant that it was dangerous to vaccinate him at that time because of the possibility [of] a severe reaction to it. In case he was immune we needed further advice on it and I advised Dr Murray to ring Dr Kath Taylor.[84]

He said that subsequently he told Mr Grinham that he must have follow-up testing to confirm whether it was safe to have the vaccination.[85]

61 Mr Grinham then left the consulting room with the pathology slip. It is clear that he did not make an appointment for a further visit, despite Dr Murray's advice. In the normal course of events he would, as he did on 2 May, have spoken to the receptionist and arranged an appointment.[86] There is no evidence as to whether he attempted to make such an appointment on 9 May or subsequently.

62 Had Mr Grinham made an appointment, his file would have been before Dr Murray on the return date and open to her to take action to "bring him back to the clinic".[87]

63 Dr Murray said, in cross-examination, that given that Mr Grinham had been consistent in following her advice and had returned for further treatment or undergone tests as requested, that she "was fully expecting him to come back in 30 days, as I had intended".[88]

64 Dr Murray agreed that the purpose of the further pathology test was to clarify the position in relation to Mr Grinham's Q fever status. She also agreed that notwithstanding that he had left the clinic on 9 May she regarded him, at least for the next 30 days or so, as her patient.[89]

65 Dr Murray agreed that she did not tell Mr Grinham specifically not to go back to the abattoir, although potentially he was continuing to work in a situation where he was at risk for contracting the virus.[90] She did not explain the difference between a low positive and a positive but affirmed in cross-examination that she and Dr Hackett could not comment on his immunity given the pathology result.[91]

66 As I mentioned earlier, subsequent to May 2002, Mr Grinham told Mrs Wright that he was positive to Q fever.

67 Mr Grinham denied having been given the pathology slip, and said that had he been given the slip, he would have gone and been re-tested because that was the advice that was given.[92]

68 I accept the evidence of Dr Murray and Dr Hackett in relation to the consultations of 2 May and 9 May and the advice provided to Mr Grinham. I reject Mr Grinham's evidence concerning these consultations. It is internally inconsistent and cannot be reconciled with the evidence of Drs Murray or Hackett, nor with the contemporaneous records of the clinic. In particular, I accept that Mr Grinham was advised of six pertinent matters on 9 May:

(b) that he could not be vaccinated at that time because of the result of the serology test;

(d) that he needed to undergo a further blood test and skin test in one month's time to clarify the position;

(e) that he was given a pathology slip with the necessary implication that he undergo a further blood test; and

(f) that he was asked to make an appointment in about one month's time to return for a skin test.

69 I also note that the evidence is equivocal as to whether it was possible for an appointment to be made one month in advance. Dr Murray thought it was possible, however Dr Hackett, who was a partner in the practice, thought that in 2002 it would not have been possible to make an appointment in one month's time, but it would be necessary for the patient to ring in, say, a week's time to make the appointment.[93]

70 I also make the following findings relevant to Dr Murray's consultations:

(a) Dr Murray was aware that Mr Grinham sought her advice as to his Q fever status and to ensure that he did not contract the virus;[94]

(b) Dr Murray did not arrange a further appointment for Mr Grinham after 9 May;[95]

(d) Dr Murray did nothing[97] subsequently to follow up Mr Grinham's failure to undergo the pathology test or to re-attend at the clinic for the skin test, stating:

I don't think in 2002 if a patient fails to attend for a pathology test it was my responsibility to follow that up.[98]

71 I also conclude that Mr Grinham understood the advice he was given by Dr Murray that he was low positive, that he needed further testing and that he could not be immunised. There was nothing in Mr Grinham's presentation in court or within his evidence that suggested he did not comprehend what was said to him by Dr Murray or Dr Hackett. He denied being told to return by Dr Murray. I reject his account for the reasons already mentioned.

72 I am also satisfied that Mr Grinham should have known that, in the light of the advice given by Drs Murray and Hackett that he remained at risk of contracting Q fever whilst working at Tabro. Whether he did have such an understanding is unclear. He told Mrs Wright that he was positive. The clinic's notes of the attendance on 3 March 2006[99] (relied upon by Tabro) are equivocal: "Has not had Q fever vaccination as had a positive serology". This entry may have resulted from a statement by Mr Grinham - equally so, it may just be an interpretation of the existing notes by Dr Malzinskas, the treating GP on this occasion.

73 In his evidence, Mr Grinham said he did not agree that he thought he was free of risk and said he really did not think about it.[100] His evidence about his knowledge of the potential risk is not cogent. He was aware of the risk when he first went to the clinic and nothing that was said by the two doctors could have led him to believe that he was not at risk. To the contrary, he was told that the tests were inconclusive.

74 Tabro and the VWA confined their cases to the consultation on 9 April and its consequences. They made two allegations against Dr Murray.

75 First, given the low positive pathology result, Dr Murray had not provided sufficiently comprehensive advice to Mr Grinham so as to alert him to the risks of working at the abattoir when it was not known whether he had tested positive to the Q fever virus. Second, they argued that once Dr Murray determined to carry out further pathology and skin tests in about one month's time and Mr Grinham failed to re-attend, she should have ensured that he was recalled to the clinic. As to the peer professional opinion defence under s 59 of the Wrongs Act, they submitted that it was not engaged. The evidence was insufficient to demonstrate that there was a widely accepted practice consistent with Dr Murray's response. They also argued that peer professional opinion was confined, at least in the case of the decision not to follow up, to matters of medical opinion and not administrative practice.

76 Dr Murray contended that the advice she provided in the circumstances was adequate. Mr Grinham was seemingly of reasonable intelligence and able to comprehend the meaning of a low positive result and the fact he would not be immunised at that time. On her behalf, it was said that it was medically inadvisable and administratively impractical to follow up all patients who were required to undergo pathology tests and failed to re-attend the practice after being told to do so. There was no reason to think that Mr Grinham would not attend for a pathology test or re-attend given his interest in his condition and the fact that he had undergone a previous pathology test and re-attended. In relation to the peer professional opinion defence, it was said that there was sufficient evidence available to establish that a wide range of other medical professionals would have acted in exactly the same way as Dr Murray.

(4) Expert opinion concerning the low positive reading in May 2002

77 Two experts in infectious diseases gave evidence on this issue: Dr Jennens and Associate Professor Eisen. Associate Professor Rawlin expressed an opinion but conceded that this was "probably more an infectious diseases question". [101]

78 In May 2007, Mr Grinham was referred to Dr Jennens, a physician who has practiced for 22 years specialising in infectious diseases.[102] He continues to be reviewed by Dr Jennens annually.[103]

79 Associate Professor Eisen is a consultant infectious diseases physician who has practised in the area for 17 years. He has had extensive experience with cases of Q fever.[104]

80 Dr Jennens' evidence, which was not challenged on this point, was that the serology test, which is necessarily negative prior to the virus being acquired, returns positive results at increasing levels once the virus is in place,[105] as in Mr Grinham's case when his serology in 2006 went from low positive to positive in the space of two weeks.

81 Each of the doctors was of the view that the likely time of infection was in the second period of employment and most probably in early 2006 - as the incubation period for Q fever is generally around 20 days, but no more than 60 days.[106] The question then remains as to the cause of the low positive result of 8 May 2002. Each agreed that this was a false positive.[107] It was highly unlikely for there to be a genuine positive in 2002 and an acute Q fever episode in 2006. Dr Jennens put it this way:

I've never seen anyone and not heard of people who have acute Q fever twice. So this result - we can only interpret that as a false positive.[108]

82 In fact, false positive blood test results are not unusual. Associate Professor Eisen gave evidence that at least one in eleven tests are false positives[109] and had several possible explanations. First, that Mr Grinham contracted the virus in the early days of his employment at the abattoir. This was regarded by both experts as being unlikely. Mr Grinham's clinical course showed no signs of infection and the fact that he contracted the disease in 2006 subsequently militates strongly against this explanation. If Mr Grinham had been infected by the Q fever virus in 2002, this would have resulted in two consequences: it may or may not have produced symptoms; and, more importantly for the purposes of this case, it would have produced Q fever antibodies, thereby providing Mr Grinham with a natural immunity to a second infection.

83 Second, it could be explained by the fact that there was a past exposure which has left low positive antibodies.[110] Neither regarded this as likely as there was no history of such an exposure.

84 Third, a false positive can be produced by a cross-reaction to another infection which produces a positive result to a Q fever pathology test.[111] Indeed, it may stay low positive indefinitely or it may be short-lived depending on the nature of the cross-reaction.[112] This was the preferred hypothesis of both doctors.[113] As I mentioned earlier, Associate Professor Eisen confirmed that it was not possible to have acute Q fever on more than one occasion[114] and agreed with Dr Jennen's conclusion that it could only be a false positive.[115]

85 The point is interesting and not entirely academic for the purpose of the case. It has relevance both to Dr Murray's decision to request a further pathology test on 9 April and to the question of causation if Tabro establishes breach of duty on the part of Dr Murray.

86 On the point of the hypothetical testing one month after May 2002, Dr Jennens was equivocal:

It's possible, it could come back negative, it could come back the same result.[116]

Dr Jennens also agreed, referring to a low positive result, that if the test was carried out in one month's time showing a negative result then it was clear that Mr Grinham had not been exposed and should have been vaccinated and that would be his recommendation.[117]

87 Associate Professor Eisen was also asked to consider the likely result of testing, assuming Mr Grinham had been re-tested subsequent to May 2002, taking into account that it is now known that he had no symptoms in 2002, a low positive reading, and acute Q fever in 2006 accompanied by significant symptoms. He expressed the opinion that, on the balance of probabilities, re-testing in 2004 (such as at Dr Kiss's surgery) would have seen a negative result and that it would have been safe to proceed to vaccination.[118]

88 Notwithstanding Dr Jennens' reservations, I am prepared to accept Associate Professor Eisen's opinion that, if Mr Grinham had been re-tested in 2004 prior to commencing work on the evisceration table, it is likely that the result would have been negative and that a vaccination would have been recommended.

(5) Expert opinion as to the adequacy of Dr Murray's treatment and management of Mr Grinham

89 Much of the written medical opinions and some of the oral opinions went to matters outside the question of the appropriateness of the advice of 9 April and the absence of any follow-up. This can be put to one side.

90 Before turning to the individual opinions on these issues there is one point I should mention. Two of the doctors (Eisen and Shapero) expressed the opinion that they would not have done any more in terms of testing after receiving the low positive result. Each was prepared to declare this result as equivalent to a positive and thus not order any further testing. Counsel for Tabro contended that I should ignore these opinions, given that Dr Murray had, in fact, determined to arrange for further testing. I do not agree with this approach. In terms of determining whether the steps taken by Dr Murray were reasonable, I think it important to take into account each of the approaches deposed to by the various medical practitioners. Of course, this does not mean that I can ignore the circumstances of the case as it presented itself to Dr Murray and the steps that she actually undertook, but their opinions are relevant in determining whether she acted reasonably.

91 I return to the individual opinions which I set out below.

92 Dr Jennens agreed that given Mr Grinham's continuing employment at the abattoir, a follow-up test after the low positive result "would be recommended."[119]

93 I have already mentioned Dr Jennens' view that assuming the return of a negative result on the re-testing, a vaccination would have been carried out. Dr Jennens also said:

There [are] always small probabilities, in people - some people are more prepared to take risks and probabilities than others. But if the consensus was - and I probably as a GP doing the test, or as a person working, I would want to talk to other colleagues in the area. I talked to the Health Department, and see what they recommended. The health department has guidelines as to who should be vaccinated and who shouldn't. So I talked to the people who wrote the guidelines and say this is the situation, should he be vaccinated. In general, if the consensus is people haven't been exposed then they should be vaccinated. If there's some doubt, and a lot of people aren't vaccinated, or some people may not be vaccinated.[120]

94 Dr Jennens went on to say that if there had been a negative result, he would recommend that a worker be vaccinated and that it was necessary to give full and proper advice concerning the seriousness of the risk if not vaccinated.[121] He thought it was reasonable for Dr Murray to advise Mr Grinham that the test results were not conclusive and that recommending a further test and consulting with experts was reasonable practice.[122]

95 Dr Jennens gave no evidence concerning the recall of Mr Grinham after he failed to re-attend the clinic.

96 Associate Professor Eisen expressed the opinion in his report that he would not have advised further testing be done:

I regard the presence of the low positive C7T result alone as indicative of Q fever exposure, which should be used to advise against vaccination. I would not advise that further testing have been done.[123]

97 His opinion, in short, was that further testing after a low positive blood test result would have been fruitless. It follows from this that he would not have followed up on Mr Grinham. On the other hand, he acknowledged that requesting the patient return to the clinic and take a further pathology test was an acceptable alternative and entirely appropriate.[124]

98 Associate Professor Eisen also said in cross-examination that in a hypothetical scenario where an abattoir worker has a low positive result, he should be tested again because of the "necessity to take every opportunity to protect against Q fever with a vaccination if it is safe to do so".[125] His reasoning was that:

the test is a one which has a substantial rate of false positives, at least one in 11. The individual had been exposed in the past but there were no signs, there were no symptoms of Q Fever and therefore, on that basis, one can say that the past test, the low positive was a - was likely to be a false positive and that should be explored, that should be investigated further with another test.[126]

99 He also commented that it was "exemplary" for Dr Murray to seek the opinion of Dr Taylor, an acknowledged expert in Q fever. He confirmed that the advice given by Dr Taylor to Dr Murray that Mr Grinham could not be immunised because of the low positive serology test result was appropriate. To immunise him at that time would have risked a severe vaccine reaction.[127] Notwithstanding his own opinion that it was unnecessary to carry out any further testing, he accepted that it was appropriate for Dr Murray to ask the patient to return for further testing of skin and blood in one month's time.[128]

100 It was difficult to reconcile Associate Professor Eisen's written report and parts of his oral evidence in chief with a number of the answers he gave in cross-examination on the question of re-testing. Ultimately, I think his opinion may be summarised as follows: given Mr Grinham's increased exposure in his new line of work on the evisceration table in 2004 and the fact that he was symptom-free for Q fever, it would have been appropriate to conduct re-testing at that time.[129]

101 In any event, there was nothing in the evidence of Associate Professor Eisen that suggested either that the advice given by Dr Murray, or her failure to recall Mr Grinham after he failed to re-attend, was inappropriate.

102 Associate Professor Rawlin was the lynchpin of the expert evidence supporting the Tabro case. He had practiced as a general practitioner, predominantly in rural communities since approximately 1987, having been the Director of Casualty at Mt Druitt Hospital, Sydney. He also had experience, to a limited extent,[130] with Q fever and the treatment of patients suffering from the illness.[131] In fact, Associate Professor Rawlin had never encountered a positive serology result in his practice.[132]

103 Associate Professor Rawlin noted that in 2002 the 8th Australian Immunisation Guideline recommended, in the case of a positive results or an ambiguous result for Q fever, that the blood test be repeated three to six weeks later.[133] It was his practice to have a patient return in one month's time to have a further blood test to check on the level of titre to determine whether they were truly immune, or whether they should have a further skin prick test and then go on to receive a full vaccination.[134]

104 In effect, Associate Professor Rawlin endorsed the steps taken by Dr Murray up to the point of being advised to return for further testing in one month's time.[135] He considered that the appropriate advice if a doctor was not sure whether a patient was immune was to advise the patient to avoid contact with high risk areas if at all possible as it was not known that the patient was fully immune.[136]

This condition is potentially completely preventable with vaccination and the patient was in a potentially high risk of contact with that illness, so in order to make sure that the patient's health was maintained then and serious complications avoided, it's really up to the doctor to make sure they can tell the patient and get them back appropriately to have the tests done, yep.[137]

His practice was to recall a patient and in this case he said that he would "follow up a result like that with a recall simply because it could potentially be a terrible outcome".[138] In his expert report, he said:

Given the nature of the type of employment of this patient a recall system should have been activated when the patient did not re-present at the Wonthaggi Medical Clinic.[139]

He thought it would be prudent to recall a patient who did not re-attend, such as in Mr Grinham's case, and identified a number of methods by which a patient could be recalled, including a software program known as Medical Direct, a notebook and the use of standard recall letters.[140] He nominated three bases upon which a doctor should determine to carry out a recall - the seriousness of the disease, the likelihood of the person getting the disease, and the understanding of the patient of the potential disease.

106 In cross-examination, he agreed that a doctor was entitled to make an assessment of the reliability of the patient in relation to the carrying out of tests and the likelihood of the patient returning to the clinic[141] and accepted that in 2002, no practice would have a general recall system for all of its pathological referrals.[142] He did not accept that the trigger for a recall was the receipt of abnormal pathology results but thought it would be determined by the clinical impression of the patient's condition.[143] Associate Professor Rawlin accepted that a general recall system, absent an abnormal pathology result, was not in place in 2002 in a general practitioner's practice.[144] When it was put to him that other practitioners at the time, would, when faced with no clinical abnormality and no abnormal pathology result, not follow up on a patient, the Associate Professor said as follows:

What I'm putting to you is this, it's a pretty grey area isn't it?---Absolutely.

As at 2002?---Yeah.

There are no real absolutes?---No, there are not.

Whilst you can express your preferences---Yes.

You're not saying that your preference, which have more of a general follow up system, you're not saying that those that are limited by using the pathology request slip serve as a trigger point, you're not saying that they're wrong or negligent or inappropriate?---I'm not saying that they're particularly wrong, no. I mean it does - it certainly was more common in those days...In being, it was, what was it?---The no recall triggered by sending a patient off to a do a blood test. So it's probably more common for people to wait for that to come back.[145]

However, he reaffirmed that even in a busy practice it did not take very long to conduct a recall as long "as your mindset is in that scene".[146]

That there was a respectable body of opinion in 2002 that it was reasonable to use the pathological result as the trigger point for the recall?---I think many doctors would do that, yes.

Yes?--- In 2002.[147]

108 In re-examination, he reaffirmed that both continuing exposure at the meatworks[148] and the preventability of Q fever[149] were relevant reasons to implement a recall. However, he also accepted that the absence of symptoms, the patient's understanding of his or her condition, and the fact that the patient had previously returned to the clinic without any follow-up, were relevant matters for determining whether to implement a system of recall.[150]

109 Dr Bills was called by Dr Murray. He is a general practitioner in Woodend and is registered as a Q fever vaccination provider.[151] He has worked with Q fever vaccinations since 2000[152] and endorsed the adequacy of the steps taken by Dr Murray in relation to seeking advice and arranging re-testing.[153] He thought that some of his colleagues would not have taken any further steps given the original positive signs of potential antibody response and that it may have precluded further vaccination.[154] He said it was inappropriate for a doctor to have given Mr Grinham further advice, given the low positive, as to the risk of further infection whilst working at the abattoir.[155] He said in relation to recall, where there was a failure to return with a pathology result, that he would be very surprised if such a system was in force in 2002 and that it was a reasonable expectation on the part of the practitioner that the patient continue to comply with instructions given by the doctor.[156]

110 In cross-examination, he agreed that the contents of Appendix 8 of an information kit distributed by the Australian Meat Industry was appropriate:

Practitioners may request patients to return for a consultation which may involve further examination diagnosis or treatment. Practitioners should clearly inform the patient why the follow up consultation is recommended and the potential consequences of not proceeding.[157]

Whilst he accepted that such advice should be given, he did not think it was as simple as that in a case where there was a low positive which meant that it was "a very difficult call for the doctor" to tell a patient that he or she was still at risk when in fact this may not be the case.[158] However, he agreed that Mr Grinham should have been told that it was important that he have a subsequent test because he was still at risk of contracting Q fever.[159]

111 Dr Bills also accepted that there were a number of systems available to doctors which enabled the recall of patients.[160]

112 Dr Bills did not accept that it was necessary for the doctor to, in effect, escort a patient and make an appointment in one month's time but that advice to the patient to make such an appointment was appropriate.[161]

113 Dr Oberklaid is an experienced general practitioner in Melbourne who has regularly vaccinated patients for Q fever but has no special expertise in its treatment.[162]

114 Dr Oberklaid considered that the steps taken by Dr Murray prior to giving advice on 9 May 2002 were adequate. He opined that the management of Mr Grinham was "entirely appropriate".[163] In relation to recall, he noted that the Royal Australian College of General Practitioners in 2002 required practices "to have a system to recall patients with clinically significant tests and results" and gave examples of a patient with a diagnosis of cancer or a patient with a very low blood count.[164]

115 His practice has never had a policy for following up on patients who failed to undergo pathology tests or return to the clinic, except in exceptional circumstances such as a malignancy: "You feel you've informed the patient of the need to do the testing, and so we rely on the patient to follow through on that".[165]

116 He said, in effect, it would be an administrative nightmare if all patients who failed to re-present for either a pathology test or return to the clinic had to be recalled.[166] In his own practice, he does not recall patients after advising them to have Q fever testing and did not believe that his colleagues would do so, although he accepted that some practitioners may have such recall systems for follow-up of Q fever results.[167]

117 Dr Oberklaid has been involved in over 500 surveys of other general practitioners for the College of General Practitioners.[168] He said "very, very few" practitioners would have a practice of general recall on the failure of a patient to re-attend after a pathology request.[169]

118 He agreed with the advice given by Dr Murray to Mr Grinham to the effect that the test result was low positive and that he was not suitable for vaccination.[170] He did not accept that it was necessary to provide any more information about his condition, stating:

...Yes, but he's been given clear advice that he should have testing. He's been given the pathology slip so I think that there's a reasonable understanding that there is a need to review the patient after further testing.[171]

When pressed about the need to give clear advice, he emphasised the individual nature of each case,[172] noting that it was a case of individual judgment by the practitioner,[173] taking into account the circumstances of the patient.[174]

119 Dr Oberklaid accepted that the question of recall or follow-up could not be dealt with as a general rule but required consideration of the individual patient.[175] In this case, he accepted that on one side the ledger there was the question of the seriousness of the disease and the patient's desire to be immunised.[176] On the other side, the provision of a pathology slip, his history of reliability, the patient's own desire to be immunised and the lack of clinical signs - all were relevant considerations in not setting in place a recall system.[177]

120 Dr Shapero is a general practitioner in Cranbourne and is an accredited tester and immuniser for Q fever.[178]

121 He agreed that it was inappropriate to vaccinate Mr Grinham in the light of the low positive result.[179] He was in the same camp as Associate Professor Eisen in relation to re-testing. His advice to the patient would have been not to re-test because the result may then be two low positives or a low positive then a negative, in which case he would still advise a patient not to vaccinate. However, he considered that it was reasonable for a doctor to order a re-testing notwithstanding his personal approach.[180] He said that the teaching at the time in the late 1990s was not to vaccinate with a low positive or positive results and that was the approach that he took.[181]

122 He regarded the advice of arranging further testing with the provision of a pathology slip, and telling the patient that he could not be vaccinated at that time, as being entirely appropriate.[182]

123 In cross-examination, Dr Shapero said that any advice given to the patient concerning a low positive, given the low positive "needs to be fairly clear"[183] but that the "pitch" depended upon his or her ability to comprehend the information. If one had to inform the patient, then the patient would be told that there was a small chance that he could get Q fever and there was a reasonably likely chance that he was immune to Q fever.[184]

124 He rejected the proposition that there was any need to contact the patient in relation to re-testing, if that had been the advice given and the patient had not complied.[185] He agreed, however, that the question of recall depended upon the circumstances of the case or, as he put it, "a spectre of significance as attached to the tests that you order, and at the very pointy end at the top end, there are some results that you clearly need to follow up."[186]

125 He said that if, against his own practice, he had advised the patient to re-test and the patient had not been re-tested he would not have done anything further in terms of follow-up.[187] But, as he put it, he would not have been in Dr Murray's position as he would never have ordered a re-test.[188]

126 At the commencement of the trial, senior counsel for Tabro stated that he would call Dr Stanley, Associate Professor Rawlin and Dr Silcock as to the adequacy of the treatment provided by Dr Murray.[189] Each of the doctors provided reports which, I have assumed, were served on Dr Murray's solicitors. Only Associate Professor Rawlin was called.

127 Assuming (as I do) that both Drs Stanley and Silcock signed the expert witness code of conduct provided by Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic),[190] in my opinion no Jones v Dunkel[191] inference can be drawn against Tabro for failing to call either witness.

128 Compliance with the requirements of r 44.03 of the SCR, and particularly acknowledgment that a witness will be bound by the code of conduct, prima facie establishes that a witness is not in the camp of any party. Moreover, Dr Stanley was initially engaged by Mr Grinham's solicitors.

129 Dr Murray could, pursuant to r 44.04 of the SCR, have tendered each of the reports if so minded. Equally so, it would have been open to Dr Murray to call the doctors.

130 I draw no adverse inference based on Tabro's failure to call either doctor.

(6) The duty of care owed by Dr Murray to Mr Grinham: legal principles

131 Dr Murray owed to Mr Grinham a duty to exercise reasonable care and skill in the provision of professional advice and treatment. The standard of reasonable care and skill required of her was that of the ordinary skilled person exercising and professing to have her special skill, that of a medical practitioner in general practice, in the circumstances of this case. The common law is replicated by statute. Section 58 of the Wrongs Act imposes a standard of "what could reasonably be expected of a person possessing" the skill of a general practitioner. That standard is not determined by the practice of medical practitioners in Dr Murray's position but "by the standard of care demanded by the law".[192] Of course the practice of other medical practitioners is relevant, and at times may be decisive, in determining the level of care required to discharge the duty owed by Dr Murray to Mr Grinham.[193]

132 It is convenient here to set out the terms of s 59 of the Wrongs Act which is headed "[s]tandard of care for professionals":

(1) A professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

(3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

(5) If, under this section, a court determines peer professional opinion to be unreasonable, it must specify in writing the reasons for that determination.

(6) Subsection (5) does not apply if a jury determines the matter.

133 For the reasons that now follow, I do not accept the contention of Dr Murray that s 59 in some way alters statements of principle as to the primary common law and statutory test for determining the scope of the duty owed by a doctor to a patient. In my opinion, based on both contextual analysis and the force of appellate authority, s 59 operates as a defence available to a medical practitioner in the event that a professional is found to have breached his or her duty.

134 Two decisions of the New South Wales Court of Appeal have held that the cognate provision[194] in that state is to be treated as a defence.

135 In Dobler v Kenneth Halverson,[195] Giles JA (with whom Ipp and Basten JJA agreed), after considering the decisions of Bolam v Friern Hospital Management Committee[196] and Rogers v Whitaker[197] said of s 5O:[198]

Section 5O has the effect that, if the defendant's conduct accorded with professional practice regarded as acceptable by some (more fully, if he "acted in a manner that ... was widely accepted ... by peer professional opinion as competent professional practice"), then subject to rationality that professional practice sets the standard of care.

In this sense, s 5O provides a defence. The plaintiff will usually call his expert evidence to the effect that the defendant's conduct fell short of acceptable professional practice, and will invite the court to determine the standard of care in accordance with that evidence. He will not be concerned to identify and negate a different professional practice favourable to the defendant, and s 5O does not require that he do so. The defendant has the interest in calling expert evidence to establish that he acted according to professional practice widely accepted by peer professional opinion, which if accepted will (subject to rationality) mean that he escapes liability.

It follows that I do not accept the appellant's submission that s 5O did not provide a defence but defined the content of the duty of care owed by the appellant to Kurt, with the onus on the respondents to prove that the manner in which he acted was not widely accepted by peer professional opinion as competent professional practice. Section 5O may end up operating so as to determine the defendant's standard of care, but the standard of care will be that determined by the court with guidance from evidence of acceptable professional practice unless it is established (in practice, by the defendant) that the defendant acted according to professional practice widely accepted by (rational) peer professional opinion. To require the plaintiff to establish the negative would significantly distort the language of s 5O(1), and would not be consistent with the reference in s 5O(2) to reliance on peer professional opinion for the purposes of the section - the plaintiff does not rely on it in order to negate a liability in negligence.[199] (emphasis added)

136 In Sydney South West Health Area Service v MD[200] the New South Wales Court of Appeal affirmed what had been said in Dobler, holding that s 5O provided a defence not available in common law upon which the professional carried the burden of proof.

137 This year, Macaulay J of this Court held in Brakoulias v Karunaharan[201] that, by reason of both of the terms of the section and the New South Wales authorities, s 59 of the Wrongs Act must operate as a defence. Notwithstanding the minor textual differences between the New South Wales provision and its Victorian equivalent, I agree with his Honour's conclusion which I think is inescapable given the wording of the section.

138 There is one other aspect of the duty of care owed by Dr Murray to Mr Grinham that should be mentioned now. Dr Murray's duty of care did not cease when Mr Grinham left the clinic on 9 May 2002. There was an ongoing doctor/patient relationship with a continuing duty between the two at the very least up until the time that Mr Grinham should have re-presented himself to the clinic. Just as a solicitor or an accountant's duty of care to a client does not cease upon a client leaving the office, the same applies, probably with more force, to a medical practitioner. So much is clear from the New South Wales Court of Appeal decision in Tai v Hatzistavrou.[202] In that case, the District Court judge was required to consider the failure of a doctor to follow up on a non-presenting patient:

(d) who was bleeding and the cause of which was as yet undiagnosed;

(e) upon whom other non-invasive tests having proved negative;

(f) who had been his patient for a very long time - almost ten years;

(g) who, when on two earlier occasions a D&C was recommended by him, had lodged the form with the Hospital and had the suggested procedure within weeks of the recommendation;

(h) who had always complied with suggested procedures and tests;

(i) who was by age and history more likely to develop cancer; and

(j) who came from a non-English speaking background (although she had a good command of English).

It is my view that in those circumstances and probably in lesser circumstances, where a practitioner's long standing patient has not appeared for a recommended procedure on the practitioner's operating schedule after a reasonable time has elapsed, he or she has a duty to contact the patient to bring to the patient's attention that she has not presented and advise the patient of the possible consequences of the failure to have the procedure carried out. There is no reason to think that such a process would create enormous practical or administrative difficulties for a doctor or be prohibitively expensive. A letter or telephone call would suffice. The problem could also be overcome by the practitioner explaining to the patient at the time of the consultation that the Hospital should be able to carry out the procedure within a specified time limit and that if this doesn't happen then the patient should contact the practitioner or the Hospital.[203]

139 Hanley JA (with whom Priestly and Powell JJA agreed), affirmed the trial judge's decision holding:

that, depending upon the precise facts of the relationship between the doctor and the patient, when a doctor is treating a patient for what may be a serious health problem, and the doctor thinks it necessary, even if only for prudential reasons, that the patient should submit to a particular surgical procedure, then the doctor has a continuing duty to advise the patient to submit to the surgical procedure, so long as the doctor/patient relationship is on foot. This does not mean that the doctor should seek to impose the doctor's view upon the patient against the patient's will, but it does mean that the doctor has a duty to keep the doctor's opinion and advice before the attention of the patient so that the patient can decide upon the patient's course in light of up to date knowledge of the doctor's opinion.

...

A point along these lines had been made on behalf of the plaintiff in the oral submissions in the present appeal although without any great emphasis being put on it as, in effect, a separate point. In the further written submissions the point was put more precisely and the position as stated in the text last referred to, adopted. The submission then continued that in the present case the relationship of patient and doctor continued between the plaintiff and defendant between December 1992 and August 1993, that it was at no stage terminated and that the defendant's duty to ascertain the cause of the plaintiff's post menopausal bleeding during that period continued, so that his failure to diagnose it until August of 1993 was a breach of his duty.

I am prepared to adopt this submission of the plaintiff. The approach seems to me to be reasonable.[204]

140 Indeed, I did not understand senior counsel for Dr Murray to contend that her duty did not continue for a reasonable period of time after the appointment, which had to be, at the very least until the time of the putative re-appearance of Mr Grinham after undergoing the pathology tests.

141 The decision in Tai is significant for one other reason - in determining breach, the question of advice and recall cannot be determined on a generic basis, it must be context specific: all the circumstances must be considered such as the patient's symptoms (if any), presentation, potential risk, comprehension of the advice and history of compliance.

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