Towns v Cross

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40030/00 DC 25/98 MASON P GILES JA DAVIES AJA

FRIDAY 4 MAY 2001 LANCE TOWNS v DR BARRY CROSS

JUDGMENT 1 MASON P: I agree with Davies AJA. 2 GILES JA: I agree with Davies AJA. 3 DAVIES AJA: This is an appeal from the judgment of a judge of the District Court of New South Wales, his Honour Judge Garling, in which his Honour dismissed a claim seeking damages for alleged medical negligence. Two issues are raised: first, whether Dr Cross was negligent in the manner in which he syringed Mr Towns' left ear and, secondly, whether Dr Cross was negligent in failing to warn Mr Towns that his ear might be perforated if syringing was performed and whether such failure caused harm to Mr Towns. 4 In the appeal, Mr S Walmsley SC and Mr W Walsh appeared for the appellant, Lance Towns, who was the plaintiff below. Ms A Katzmann SC appeared for the respondent, Dr Barry Cross, who was the defendant below. 5 In late September 1997, Mr Towns developed a painful left ear. On 3 October 1997, he consulted a general practitioner, Dr R A Paton. Dr Paton noted an appearance of otitis externa, syringed the ear and inserted an ichthammol wick. On 13 October 1997, Mr Towns consulted Dr Cross, a general practitioner in Coffs Harbour. Dr Cross also diagnosed an outer ear infection and syringed the ear and inserted a wick. Mr Towns found the pain very bad and became sick and was vomiting. He removed the wick. 6 On 22 October 1997, Mr Towns again consulted Dr Cross. He told Dr Cross that he wished to see a specialist. Dr Cross gave Mr Towns a referral to the only specialist practising in the area, Dr A J Hulcome. Dr Cross again syringed Mr Towns' ear but, on this occasion, did not insert a wick as Mr Towns was opposed to it, his ear was too sore. 7 On 31 October 1997, Mr Towns again consulted Dr Cross. He asked if Dr Cross would obtain an appointment with the specialist as soon as possible. Apparently, an appointment had been arranged for 12 November 1997. Dr Cross said that an earlier appointment could not be achieved. Dr Cross did not regard Mr Towns' condition as one which required emergency treatment. Dr Cross again syringed the ear and inserted a wick. Mr Towns found the pain so bad that, after leaving the surgery, he again became sick and vomited. He removed the wick. 8 On 1 November 1997, Mr Towns again consulted Dr Cross. On his evidence, he said to Dr Cross that he could taste the drops and tar which had been put into his ear. This conversation was denied by Dr Cross. Dr Cross, at that consultation, diagnosed a serious blood disorder, haemochromatosis, which had been picked up on blood tests. On 2 November 1997, Mr Towns again saw Dr Cross with respect to the haemochromatosis. On 4 November 1997, Dr Cross tried to insert a wick into the ear but Mr Towns found it too painful. On the evidence of Dr Cross, he syringed Mr Towns' ear on each of these three occasions. 9 On 12 November 1997, Mr Towns saw Dr Hulcome. Dr Hulcome found a mild fungal otitis externa and, further, that Mr Towns' left eardrum had been perforated, that is to say, there had been a rupture of the tympanic membrane. Dr Hulcome concluded, from the history given to him, that this perforation was most likely caused by the syringing of Mr Towns' ear by Dr Cross. Dr Hulcome treated Mr Towns for mild fungal otitis externa, that is to say, an infection in the outer ear, and for a moderate sized anterior perforation. In 1998, Dr Hulcome operated to close the perforation. 10 Dr Hulcome gave oral evidence that a chronic fungal infection may cause a perforation but that it was more likely that Mr Towns' fungal infection weakened the drum so that the syringing performed by Dr Cross then perforated it. Dr Hulcome gave evidence that he was a busy specialist and that, if a general practitioner had rung him and said he was in trouble, he would have arranged for a consultation within a couple of weeks, probably a month, but that, if the general practitioner did not ring, it probably would have taken six to eight weeks to obtain a consultation. Dr Hulcome did not express any view as to whether Dr Cross had been negligent in his treatment. 11 Dr Joseph Scoppa, who like Dr Hulcome was an ear, nose and throat surgeon, reported, inter alia, to Mr Towns' solicitors that:- "I can find no evidence in the documentation that you have provided that suggests that Dr Cross carried out ear syringing or that he inserted ear wicks inexpertly or incompetently. I can state however that I am of the opinion that syringing of the ear if properly and carefully performed should not result in perforation of a normal eardrum. If however the eardrum is in any way weakened by previous scarring or infection, then a perforation is more likely to occur, even though all due precautions and skill are used throughout the procedure. I am unable to comment as to the true status of Mr Towns's eardrum prior to syringing, however it may have been weakened by the presence of the chronic otitis externa that was causing Mr Towns's symptoms, and that was the main indication for performance of the syringing."

Dr Scoppa gave oral evidence which did not add materially to his written report. Dr Paul Fagan, who specialised in neuro-otology, reported that severe outer ear infection, particularly with a fungus, can cause a tympanic membrane perforation. 12 In his evidence, Dr Cross explained the manner in which he had syringed the left ear and the technique he had used. His technique as so described accorded with a technique which Dr Scoppa said was the best practice. Dr Cross said that he was experienced in the procedure and, in a peak season, would perform it about ten times a day and, in an off season, three to six times a day. In cross-examination, it was not specifically put to Dr Cross that he had adopted an inappropriate procedure, that he had used an inappropriate pressure of water or that his syringing had been inappropriately energetic. Indeed, he agreed with counsel for Mr Towns that, in hindsight, he would not have acted differently. 13 Much of the cross-examination went to another point, namely, that Mr Towns had made his view clear to Dr Cross that he wished to see a specialist and that he wished Dr Cross to arrange an urgent appointment, which Dr Cross refused to do. That issue is not involved in the appeal. It was not suggested at the trial or in the appeal that the general nature of Dr Cross's treatment was inappropriate pending consultation with a specialist. 14 On the issue of negligence in syringing, the trial Judge found for Dr Cross. The trial Judge, inter alia, said:- "Like Dr Scoppa, on the evidence before me, I an [sic] unable to say that the defendant carried out the syringing procedure, or indeed the placing of a wick in the ear, in a careless way, or that he should not have syringed the ear. It seems that that was the acceptable treatment, and so it seems that what happened unfortunately was that the doctor syringed the ear quite competently but, during the course of syringing, probably because of the weakened state of the ear, the perforation occurred. I cannot see that there is any negligence which causes the perforation." 15 In the appeal, this finding was the subject of some brief written submissions by counsel for Mr Towns, which were not the subject of further elaboration in the oral submissions. The written submissions relied upon this evidence of Dr Hulcome:- "Q. Whether or not the syringing caused the perforation depends upon the technique that was used? A. Usually. Q. Well, when you say 'usually' it's not usual to cause a perforation simply by syringing an ear? A. I've seen two in the last two years, but usually those drums have been weak already and the syringing has been fairly energetic but yet it can occur in every day practice. Q. But if the syringing technique is appropriate then it ought not to perforate an eardrum? A. It will not perforate a normal eardrum but if an eardrum is very thin or weakened then it can perforate." 16 It was submitted that the use by Dr Hulcome of the words "fairly energetic" carried the meaning that there would be an excessive use of force associated with the perforation of an ear in the course of syringing. I do not draw that inference from Dr Hulcome's evidence. Nor do I draw any adverse inference from another passage which was relied upon in the submissions and which appeared in the oral evidence of Dr Scoppa. The finding by the trial Judge, that the evidence did not show that there had been negligence on the part of Dr Cross in the syringing of Mr Towns' left ear, was well based. 17 The main issue raised in the appeal turns upon Dr Cross's failure to warn Mr Towns of the possibility that problems might arise if the ear were syringed. Dr Cross conceded that he gave no such warning. In his written report, Dr Scoppa said, inter alia:- " 3. What are the known risks associated with the treatment undertaken by Dr Cross? … I enclose a photocopy of pages 242 to 245 of Mawson' & Ludman's Textbook of 'Diseases of the Ear' … where the technique, precautions, and complications of ear syringing are discussed. Mawson mentions the following complications: 1. Reactivation of inactive or quiescent otitis media. 2. Rupture of the tympanic membrane. This is also reported by Brahe Pedersen & Vendelbo Johansen … 3. Caloric stimulation of the labyrinth. This is also reported by Reker & Rudert … 4. Scalding the meatus. Other complications of syringing that have been reported include: 5. Otitis externa reported by Dingle … 6. Cessation of the heartbeat reported by Prasad … 7. Malignant otitis externa reported by Ford & Courtney-Harris … 4. What is the incidence of injury from the treatment? Sharp et al … reported that 38% of 105 practitioners had experienced complications after performing ear syringing, and estimated that severe complications requiring specialist referral occur in approximately 1 in 1000 cases. 5. What appropriate advice and/or warnings ought to have been given to the patient prior to undertaking the treatment? In my opinion a patient who is to undergo syringing and/or insertion of a wick should be advised that the procedure can be painful, and that trauma to the eardrum and/or ear canal skin may result, and that temporary dizziness may ensue if the irrigating fluid is too warm or too cold." 18 I must note that I would find it surprising if the warning which Dr Scoppa recommended was, in practice, a warning commonly given by practitioners. Why would a practitioner advise his patient that dizziness might ensue if the irrigating fluid was too warm or too cold? One would assume that it was the practitioner's task to have the fluid at the correct temperature. However, Dr Scoppa was not asked whether the warning he recommended was either one which he himself gave to patients or one which was commonly given by practitioners. 19 The trial Judge rejected the claim on two bases, one being that he considered that the risk involved in syringing the ear was too minimal a risk to warrant warning a patient about it and the other that he was not satisfied on the balance of probabilities that Mr Towns would have refused the treatment had he been given a proper warning. 20 It is unnecessary and inappropriate to discuss the first ground upon which the trial Judge refused the claim. Warning cases should be conducted with great care and with attention to detail. That is because they are cases in which, very often, the issues are difficult and the court may be asked to lay down a standard of behaviour for medical practitioners which does not accord with the general practice of persons skilled in the profession. In the present case, very little was said on the issue of warnings. It may be inferred that Dr Paton did not give a warning. Dr Cross said that he did not give a warning, but gave no further evidence on the topic. Dr Hulcome was asked no questions about and gave no evidence about a warning. Dr Scoppa gave evidence in his written report, which I have set out above, but was asked no questions about it in his oral evidence. Dr Fagan, who reported to the solicitors for Dr Cross, made no mention of the issue. 21 Mr Towns did not, before the evidence for the plaintiff and the defendant was closed and counsel had addressed, give any evidence as to what would have occurred had he been given a warning, such as that propounded by Dr Scoppa. In a warning case, evidence as to what the plaintiff would have done, had a warning been given, is necessary to establish that damage flowed from the lack thereof. In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, Kirby P, at p 559, expressed the causation issue in the following way:- "… I consider that the question to be asked is whether, in the particular circumstances, the risk was such that the particular patient should have been told and, if told, would not have accepted the treatment."

See also Samuels JA at pp 580-581, with whom Meagher JA agreed at p 607. Decisions in which a claim has failed because the patient's evidence on this point was not accepted include Rosenberg v Percival [2001] HCA 18 and O'Brien v Wheeler (New South Wales Court of Appeal, Mason P, Powell and Stein JJA, 23 May 1997, unreported). 22 Although the test is a subjective one, a court is not bound by a plaintiff's evidence as to what the plaintiff would have done if warned. In Ellis v Wallsend District Hospital, Samuels JA said, inter alia, at p 581:- "It is, of course, true that a patient's evidence about what he or she would have done if told of certain risks may be coloured by the fact that the risks did in fact eventuate; but it is open to a court to disbelieve evidence found to be tainted by hindsight: Manderson, 'Following Doctors' Orders: Informed Consent in Australia' (1988) 62 ALJ 430 at 434. Obviously, in endeavouring to ascertain what the plaintiff's response would have been to adequate information had it been conveyed at the appropriate time, a court will be greatly assisted by evidence of the plaintiff's temperament, the course of any prior treatment for the same or a like condition, the nature of the relationship between patient and doctor including pre-eminently, so far as it can be established, the degree of trust reposed in the doctor by the patient. The extent to which the procedure was elective or imposed by circumstantial exigency and the nature and degree of the risk involved will all be matters of considerable importance: see Robertson, 'Informed Consent to Medical Treatment' (1981) 97 LQR 102 at 122."

See also Chappel v Hart (1998) 195 CLR 232 per Kirby J at 272-273; Johnson v Biggs [2000] NSWCA 338 per Santow AJA at [87]. 23 During the hearing on 28 and 29 October 1999, Mr Towns gave no evidence as to what he would have done had he received a warning. Subsequently, after the trial Judge had reserved his decision, an application was made for leave to reopen. That leave was granted and, on 17 November 1999, Mr Towns gave this evidence, inter alia:- "Q. In relation to this matter, had you been told by Dr Cross that there was a risk involved with the procedures that he was to carry out with your ear, what would you have done? A. I wouldn't have let him do it in the first place."

In the course of his evidence on this point, Mr Towns referred to the fact that his brother was deaf and that he would take the risk of deafness very seriously. 24 Even apart from being late, this evidence was inherently unsatisfactory. If evidence is to be called as to the action that would have been taken had a warning been given, the terms of the warning relied upon should be expressed. The question which was put to Mr Towns did not express the warning which was set out in Dr Scoppa's report. 25 In his cross-examination on this evidence, Mr Towns said more than once that, if he had been warned that there was a risk, he would not have let Dr Cross perform the syringing. Counsel for Dr Cross attempted to have Mr Towns turn his mind to the fact that he had been unable to obtain an immediate appointment with a specialist. Many of Mr Towns' answers went to the point that he preferred to see a specialist and that he had asked Dr Cross to arrange an immediate appointment which Dr Cross would not do. 26 A determination of what a witness would have done, if the witness had had certain information, can be one of the most difficult findings that a judge has to make. The determination will be very much assisted if the evidence is given clearly and at an appropriate time. In the present case, that did not happen. The evidence was late, the warning relied upon was not expressed in the question put to Mr Towns and Mr Towns, in any event, seemed unable to face up to the fact that, if a warning had been given, he would have had a choice to make, and there would have been potential benefits in each course of action to be taken into account. 27 In rejecting Mr Towns' evidence on this point, the trial Judge said:- "… He was not a good witness. He tried to do his best but I could not totally rely on his evidence. He was a competent enough witness, and I am not suggesting he was untruthful in any way. The problem I have in accepting what he said when he was recalled was that it happened after the evidence had been completed and after the legal argument had taken place and after it was pointed out in effect that unless he said that, he could not succeed in any claim that the doctor had not given him proper advice. That makes it very difficult for me to accept what the plaintiff says. … I have real difficulty in accepting his evidence that if a doctor said to him there is a one in a thousand chance that you could have a serious complication that he would have said do not do it and the other thing that concerns me is this; his real complaints to this Court were not about the syringing of his ear. They were about the wick being inserted in his ear. … … I am not satisfied on the balance of probabilities that the plaintiff would have refused to have such treatment." 28 The first ground upon which it was submitted that the trial Judge erred in this finding was that there was a breach of the rules of natural justice in that his Honour failed to warn Mr Towns or his counsel that he may have difficulty in accepting Mr Towns' evidence as it was given after the submission had been made that the plaintiff's case must fail as there had been no such evidence. It was submitted that the trial Judge should have informed Mr Towns and his counsel that he might place weight upon this factor. Leave was sought in the appeal to adduce evidence on affidavit as to what Mr Towns' heard and understood when submissions were made and as to what had been said to him before he was called to give the additional evidence. Leave to file these affidavits was refused. 29 In my opinion, no breach of procedural fairness occurred. It was obvious to all parties that the fact that the evidence was given at a late stage would be a matter taken into account in an assessment of the weight of the evidence. As Kirby P said in Ellis v Wallsend District Hospital at p 560, however honest a patient may try to be, self-interest and the knowledge of the misfortunes that have followed the treatment will necessarily colour the patient's evidence. It was open to Mr Towns' counsel at the trial to adduce evidence as to the circumstances in which the evidence was being given. Mr Towns' counsel chose not to do so. 30 It was next submitted that the finding of the trial Judge was not well based on the evidence before him. In my opinion, however, no error in the finding of fact has been established. The trial Judge found that the evidence of Mr Towns on the point was not persuasive. Syringing of ears for otitis externa was a very common procedure which general practitioners were accustomed to do. Mr Towns could not obtain an early appointment with the specialist. As his ear was extremely painful, it was not unlikely that, notwithstanding that Mr Towns had a deaf brother, he would have authorised Dr Cross to proceed with the treatment. 31 Such a finding, based in part upon the credibility of the plaintiff, is not susceptible of review by an appellate court. In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said, inter alia, at p 479:- "… If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' ( S.S. Hontestroom v S.S. Sagaporack [1927] AC 37 at p 47) …."

See also Abalos v Australian Postal Commission (1990) 171 CLR 167 and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 142 CLR 531. In the present case, the trial Judge's view of the credibility of Mr Towns was a matter of substantial significance. 32 For these reasons, in my opinion, the appeal should be dismissed. The appellant should pay the costs of the appeal.

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