The appeal
36 The principal attack by the appellants on the judge's finding against Dr White (and thus the hospital) was that the information in the Orlando minutes on which the respondent's case depended was in an unsolicited document provided to him on a personal basis only, and for the general purpose of providing him with a better understanding of another oncology group in which he had expressed an interest. The appellants argued that there was no basis in the evidence for Professor O'Gorman-Hughes to have reasonably expected Dr White to give him any relevant information from that source. The appellants point to the absence of any suggestion of such an expectation in the written material from Professor O'Gorman-Hughes in evidence. They submit that Dr White owed no duty of care to make himself familiar with all of the material in his possession or to impart that information to his colleagues, including Professor O'Gorman-Hughes.
37 The interest Dr White had in the Paediatric Oncology Group in Orlando cannot fairly be described as a merely personal one. It was intimately bound up with the work Dr White was doing at the hospital, and it was directly relevant to the interchange of information which took place in the course of Dr White's employment in the hospital. The appellants' attack ignores the evidence from Dr White of the system whereby he normally circulated material he received relating to paediatric oncology as part of his "usual communication" with the team within the hospital's paediatric oncology department. That the members of that department operated as a team and to an extent collaborated with each other is clear from the evidence. A group which Professor O'Gorman-Hughes identified as the Children's Tumour Clinic Group operated in the Prince of Wales Hospital and its work is outlined in the material supplied by him and admitted into evidence. There were regular multidisciplinary sessions which included paediatric oncologists, paediatric surgeons and paediatric pathologists. They discussed the original formulation of the protocols, and they frequently and regularly reviewed the available information and literature on tumours such as rhabdomyosarcomas and soft tissue sarcomas. Regular weekly meetings of the hospital's paediatric oncology group also discussed the respondent's case concerning the formulation of her treatment. The plans for that treatment were outlined at those Friday morning meetings, and the members of the group agreed with the course of action proposed.
38 Dr White was a paediatric oncologist in the paediatric oncology group. The clear inferences from all of the evidence are that he took part in at least the regular weekly meetings of that group, and that he knew that his colleagues in that group needed all of the relevant information he had gleaned from his overseas connections for the treatment of their patients, including Professor O'Gorman-Hughes for the treatment of the respondent. Dr White knew that Professor O'Gorman-Hughes's protocol was based in part on IRS-II, and that studies of the IRS Group were regarded as being studies of importance (see par [20] supra). When Dr White did finally read the Orlando minutes, he realised the information they contained was significant to Professor O'Gorman-Hughes's treatment of the respondent, as he drew this information to the attention of the appellants' legal advisers, and he agreed that, if he had been asked by Professor O'Gorman-Hughes whether he had any information in relation to the IRS-II protocol, he would have searched through his documents and would have produced these particular minutes; he also said that he would normally have circulated them when the document was received (see par [23] supra).
39 It is true that there is no direct reference in the written material from Professor O'Gorman-Hughes to his reliance on the system described by Dr White in his evidence. This was one of the many disadvantages suffered by the parties on both sides of the record as a result of Professor O'Gorman-Hughes's death before the trial. According to the appellants' written submissions dated 5 December 2005, the fact that Dr White was a corresponding member of the Children's Cancer Study group was not raised as an issue in the case until it was mentioned in a report from Professor Bleyer in December 2002, two years after Professor O'Gorman-Hughes died. This has not been disputed by the respondent. The respondent's interrogatories must therefore have been drafted without any knowledge of the system's existence, and none of the interrogatories administered necessarily required Professor O'Gorman-Hughes to give details of that system. The only reference to Dr White by name in the answers to those interrogatories was excluded (see par [19] supra). The other, more discursive, material from Professor O'Gorman-Hughes is fully consistent with the existence of such reliance (see par [37] supra).
40 In my opinion, all of this material justified the judge's acceptance of a duty of care on the part of Dr White in relation to the dissemination of the Orlando minutes to the members of the oncology department team. He did not find that Dr White had a duty actively to seek out information from any particular overseas body; his implicit finding was merely that Dr White had a duty to pass on information he had received from such bodies. I am not persuaded that the judge's conclusion that Dr White had been negligent was erroneous. I would reach the same conclusion as the judge did for myself.
41 The appellants next attack the judge's finding (at [33]) that, if Professor O'Gorman-Hughes had been made aware of the amendment to the IRS protocol, he would have sought advice from members of the IRS Group as to the problems they had encountered by way of highly undesirable side effects from the chemotherapy being administered under the protocol. The appellants submit that the judge should have accepted the evidence of their witness, Dr Kellie, that in Sydney and Melbourne it was very rare in oncological circles to seek advice from overseas in the initial stages of treatment but relatively common to seek assistance from overseas if unusual side effects are encountered in the course of the treatment.
42 The two situations are quite different. Where there has been no question of reliance on an overseas protocol involving a radical, experimental and controversial means of treatment, used rarely in the hospital, the practice described by Dr Kellie may well be the usual one. In this case, however, the judge was fully entitled to conclude that Professor O'Gorman-Hughes would have made inquiries once he knew that there had been an amendment to the IRS protocol on which he had in part relied in formulating his own protocol.
43 The appellants then submit that there is doubt that the amendment to IRS-III would have been made available to Professor O'Gorman-Hughes by the IRS Group. However, the respondent's case ultimately accepted by the judge did not depend solely on the lack of an opportunity for Professor O'Gorman-Hughes to make inquiries of the IRS Group. Dr White gave evidence that there was no restriction on sharing the information he had obtained from the United States (see par [20] supra). The evidence discloses that members of various oncology groups willingly gave assistance to non-member medical practitioners. In any event, Dr Kellie (who was called by the appellants) said that, if he had read the Ruymann paper prior to treating a patient he would have called the IRS Group, and that it was likely that they would have shared the 1987 amendment with Professor O'Gorman-Hughes.
44 The case accepted by the judge necessarily depended on his acceptance of the evidence of several medical practitioners (some of them called by the appellants) that the dosages of Ara-C administered to the respondent by way of TIT, and the frequency of the TIT, together with the enhancement of the chemotherapy on the effects of the radiotherapy, had caused the respondent's quadriplegia. The amendment, as already stated (par [17] supra), recommended substantial changes in relation to these matters in the earlier protocol, and the judge concluded (at [34]) that the treatment based in part on the earlier IRS protocol would not have been administered if Professor O'Gorman-Hughes had been made aware of the amendment. It was the fact of the amendment - with its advice to lower the dosages and frequency of the treatments to substantially below what had been recommended in the earlier protocol because of the possibility that neurological complications had been caused by following those recommendations - that would have put Professor O'Gorman-Hughes on inquiry, wherever the inquiries may have been directed.
45 The appellants, however, challenge the status of the 1987 amendment on the basis that it was only part of an ongoing clinical trial, it had not been analysed, peer-reviewed or published, and it was still experimental. It was submitted that the amendment cannot therefore represent a standard of care which had to be applied by Professor O'Gorman-Hughes. The protocol itself, the appellants said, had merely been an experiment to test a hypothesis prior to being peer-reviewed in 1987, and therefore had not been binding on practitioners, nor had it necessarily been demonstrative of the best standards of practice. (The appellants' description of the 1987 article as being a peer review is inconsistent with its own description as an "initial" study.) The appellants next said that the amendment to that protocol in 1987 was also only a clinical trial with no proven record, no more than an experimental change, so that it too was not binding on Professor O'Gorman-Hughes, nor was it necessarily demonstrative of the best standards of practice. This challenge is misdirected. The issue was not whether Professor O'Gorman-Hughes should have adopted the amendment to the IRS Protocol for the first time. The relevant issue in the case was whether - having already adopted an earlier version of the IRS protocol at a time when it too had not been analysed or peer-reviewed, and advice having now been given to reduce the dosages and the frequency of the treatments it had recommended - Professor O'Gorman-Hughes would have followed the advice given in the amendment.
46 Another of the appellants' witnesses, Dr Plowman, expressed the view (which the judge accepted) that, if Professor O'Gorman-Hughes had been aware of the 1987 amendment to the protocol on which he had relied, he would have acted unreasonably if he had not followed the recommendations made by the amendment. That evidence was given in the face of the absence of any firm conclusion in the amendment to the protocol that the treatment previously recommended had in fact caused the neurological complications disclosed in that amendment, but it was no doubt based on the fact that the IRS Group had recommended reducing both the quantity of the chemotherapeutical agents administered by way of TIT and its frequency because of the risks of neurological complications, despite the absence of any such firm conclusion. Dr Plowman also said that the respondent's high risk of dying without the treatment had to be weighed against the risk involved in the treatment itself, and he then considered what he would himself have decided to do. Unfortunately, it is difficult to interpret this evidence (which was in re-examination), as it is unclear whether he says that he would have continued with the original recommendations in the protocol or with the protocol as amended. Counsel for the appellants (whose witness Dr Plowman was) did not ask him to make this evidence any clearer, and appears to have been content to leave the waters muddied. However, read in the light of the view which Dr Plowman had expressed immediately before he gave that evidence, I would interpret his evidence so that it was consistent with that view rather than contradictory of it.
47 It was open to the judge to conclude that the treatment based in part on the earlier IRS protocol would not have been administered if Professor O'Gorman-Hughes had been made aware of the amendment. My own conclusion is that Professor O'Gorman-Hughes, after making inquiries of members of the IRS Group or others in relation to the amendment, would have adopted the advice given by the amendment, and the respondent would not have been rendered quadriplegic by the treatment administered to her. That, as I understand the judgment, is the effect of what the judge held. There was no error made by him in doing so.
48 The appellants also attack the judge's finding on causation on another basis, that he had wrongly interpreted the medical evidence relevant to this issue. Even if the evidence could be interpreted in the way submitted by the appellants (of which I am not persuaded), the existence of two different interpretations of that evidence does not require a rejection of the interpretation which the judge has accepted. I have read the evidence to which reference was made in the submission, and I do not consider that any error has been demonstrated in the judge's finding in favour of the respondent on the issue of causation.
49 On this issue of causation, there was some debate between the parties concerning the decision of the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. This debate was started by the respondent in written submissions produced at the end of the hearing of the appeal, to which the appellants replied in writing after the hearing. In that case, the House of Lords accepted (at 240) the following statement concerning causation:
The plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action.
The respondent relied on both alternatives. The appellants submitted that the statement did not reflect the law of Australia, and that in any event the second alternative requires the issue of negligence to be considered in an artificial context.
50 In my opinion, this debate does not need to be resolved in the present case. The judge held that Dr White was negligent in failing either to make himself aware of the information in his possession relating to the amendment to the IRS protocol on which Professor O'Gorman-Hughes relied or to establish a system for the proper dissemination of such information throughout the oncology department at the hospital. The judge then held that (1) the dosages and frequency of the chemotherapeutical agents administered by Professor O'Gorman-Hughes at a higher level than those advised by the amendment to the IRS protocol had caused the respondent's myelopathy and consequent quadriplegia, and (2) if Professor O'Gorman-Hughes had known of the relevant amendment, he would have modified the regime he had prescribed for the respondent.
51 As a consequence of all these findings, the case thus falls within the first alternative accepted in Bolitho, which in my opinion is part of the law of causation in Australia: see Chappel v Hart (at [14], [113]). (Although Hayne J dissented in the result (at [121]), his statement of principle at [113] is uncontroversial.) For this reason, it is unnecessary to consider whether the second alternative accepted by the House of Lords in Bolitho is available in Australia.
52 Finally, the appellants challenge the judge's finding that the quantity of Act-D, which exceeded both the amount stipulated in the original IRC protocol and that actually prescribed by Professor O'Gorman-Hughes, contributed to (and thus caused) the respondent's myelopathy and consequent quadriplegia. They submit that the judge failed to have regard to the fact that it was Professor O'Gorman-Hughes himself who deliberately determined the amended final dosage after it had been discovered that the earlier dosages had exceeded what he had prescribed. They point to the evidence of Dr Kellie to the effect that the total Act-D administered was not excessive by comparison with a number of other international protocols. The judge was, however, entitled to rely on the expert opinion of Professor Bleyer (and similar views expressed by three other medical practitioners, including one called by the appellants), that the Act-D "administered after radiotherapy contributed to the myelopathy by inducing a 'recall' reaction to the radiotherapy". I am not persuaded that the judge erred in that finding.
53 The judge does, however, appear (with respect) to have made a minor error in detail in relation to this matter, to which the parties have not referred, but it is as well to record it. In making the finding based on the evidence of Professor Bleyer, the judge relied in part on his own finding (at [50]) that the amount actually given to the respondent was in excess of that stipulated "by the amendment to IRS-III to be administered". That statement was erroneous, as the amendment does not refer to the dosage of Act-D. As that error in detail has not been relied on by the appellants, and as it is minor in nature, I do not propose that the conclusion be interfered with on appeal.
54 It follows, in my view, that the appeal should be dismissed. It remains necessary, however, to deal with the notice of contention filed by the respondent in relation to the rejection by the judge of her case against Professor O'Gorman-Hughes, and with her cross-appeal against the judge's refusal to order the appellants to pay indemnity costs.