Walls v Lance & Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11977 of 1993 CYNTHIA SARAH JANE WALLS v JAMES WALDO LANCE & ANOR JUDGMENT 1 For some time, the plaintiff has not been legally represented. She has appeared in person during the trial of these proceedings. 2 She brings a claim in professional negligence against two defendants. Further, she brings a claim founded on assault against the second defendant. Her claim is presently pleaded in the Fourth Further Amended Statement of Claim. The particulars of negligence may be found in paragraph 16 of this document. The particulars of injury are:- "(a) Damage to the central nervous system (b) Puncture of the spinal canal (c) Pain and emotional sequelae (d) Severe shock"

The injury referred to in (a) is presented as the principal injury. It has been described in terms of violently abnormal electrical activity throughout the whole of her body. 3 The first defendant is a medical specialist (neurologist). The second defendant is the body responsible for the operation and management of the Prince Henry Hospital (the Hospital). 4 The court has ordered that the questions of liability and quantum be tried separately. The court is presently concerned with the question of liability, the hearing of which has been expedited. 5 The plaintiff was born on 20 June 1953. She is not married. She is an arts graduate with honours in French. She has studied in France. She has partly completed a law course. Between 1976 and 1990, she worked in the media in a variety of jobs. 6 In 1984, she experienced symptoms in her right upper limb. There was numbness. There was severe neck pain. She has described this as chronic neck pain which persisted until about 1987. It was resolved by physiotherapy and/or yoga. The first defendant has recorded a history of weakness and pain in that limb when used excessively or when she was very tense. She has persisted with the view that these problems can be seen as "repetitive strain injury" (RSI). 7 In July 1988, she moved to Noumea and was working as a freelance journalist. She was suffering from cystitis. On 4 May 1989, she was present when three people were killed at a customary ceremony. She says that this led her to be severely shocked. It seems to have been regarded as a cause of severe stress. By July 1989, she began noticing difficulty opening her bladder. 8 She underwent treatment. It cleared the infection, but the urinary hesitancy persisted. She saw a urologist. She was told that the urethra was in spasm and that the problem was neurological. She was referred to a local neurologist. He prescribed a trial course of Baclofen which alleviated her bladder symptoms. She had other symptoms (occasional numbness and tingling on the sole of the left heel). She was told that she might have a benign spinal tumour and was advised to return to Sydney for a magnetic resonance imaging (MRI) scan of the brain. 9 She came to Sydney. She wanted a second opinion. She saw a urologist (Dr Millard) at the Hospital. On 14 August 1990, she underwent a urodynamic test. She says that she had an adverse reaction to that test and that there was a failure to record information by the Hospital (type and quantity of the contrast medium). She was told by Dr Millard that she had a hyperactive bladder and a spastic urethra. She was further told that he thought that she probably had multiple sclerosis (MS). He wanted her to undergo a number of tests (evoked potentials, a kidney X-ray, an MRI scan, and another cystoscopy). She was told that she should see the first defendant (who was described as the head of neurology) as soon as possible. 10 On 15 August 1990, she saw the first defendant. She was seen on short notice after the ward round that day. He took a history and conducted a physical examination. His clinical examination revealed that her biceps and radial jerks were diminished on the right which he thought to be strongly suggestive of a compromise of the C5-C6 nerve roots on the right. He considered that this was due to a disc problem in the neck. He told her that he didn't think that she had cancer or multiple sclerosis, but he did think that she had spinal cord compression from disc protrusion in the neck. This he regarded as a life threatening condition. He suggested a myelogram (a purpose of which was to exclude the diagnosis of compression) and then, if it was positive, a removal of the disc and fusion of the vertebrae. There was a need for a quick diagnosis because of the serious risk to the patient. There were time constraints as she was due to return shortly to Noumea. At the time MRI's were not readily available (inter alia the second defendant did not have such equipment). As he believed that a problem of nerve root compression outside of the spinal cord was more likely, the first defendant considered that a myelogram was a better indicator. The MRI did not always give conclusive results in such cases. Further, it was considered that the cerebro-spinal fluid tests (CSF) taken at the time of the myelography could also give useful additional information. The risks associated with a myelogram were then regarded as minimal. They had been used over a long period of time. MRI scans were not as clear as they are now. Often, they failed to demonstrate a plaque of MS and did not show the extent of root sleeves as well as myelography followed by computerised tomography (CT) scanning. 11 During a detailed discussion with the first defendant, she received advice concerning complications usually encountered after a myelogram. She was advised that a low pressure headache could follow (it happened in about 15% of patients). She may have been advised of the possibility of transient aggravation of pre-existing symptoms. The first defendant said that he commonly advised of this risk. 12 She became an inpatient at the Hospital between 15 and 22 August 1990 (save for the period when she went home for the weekend). Arrangements for visual and sensory evoked tests were deferred. On 16 August 1990, she had the myelogram. It was carried out using Omnipaque 300 as the dye. The dye was injected into the fluid around the spinal cord but not into it. The hospital report states "L2/3 puncture was performed and approx 12mls of Omnipaque 300 was introduced into the spinal subarachnoid space. Contrast was allowed to flow into the cervical region." The myelogram excluded the diagnosis of compression. The CSF provided information which assisted a diagnosis of MS. Later, she had a CT scan. 13 Following the myelogram, she has said that she experienced bad headache and nausea. She has said that she developed RSI type pain in her neck and right hand trapezius muscle and the muscle went into spasm. 14 She was told that the myelogram had proved to be negative. She was told that a sample of her spinal fluid taken before the myelogram showed the oligoclonal bands typical of multiple sclerosis. The first defendant diagnosed possible MS. The plaintiff refused to have adrenocorticotrophic hormone (ACTH) injections. 15 She then underwent the tests for visual and sensory evoked responses (about 4 days after the myelogram). She did not tolerate them very well. The responses were regarded as abnormal. The first defendant considered that the diagnosis of MS had firmed from possible to probable. The following morning, she said that she had developed a ringing in the head. 16 The first defendant arranged for an MRI scan. The MRI was abandoned because inter alia the plaintiff felt nauseated before the procedure. The plaintiff also said that her request for written information about the MRI had not been met. 17 She was prescribed a five day course of Betamethasone tablets (the steroids) and discharged. The steroids were given as treatment for her reaction to the myelogram. She said that by the time she left hospital the headache and RSI attack were beginning to subside. She took the first four days of the course, but not the final day. She said that her condition continued to deteriorate. She further said that she experienced other symptoms. There was a loud ringing noise in her head together with symptoms which inter alia have been described in terms of hyperactivity in all nerves with electric shocks. 18 On 30 August 1990, she returned to the Hospital. She saw the first defendant and gave him a written list of her symptoms (part of Exhibit E). 19 She was then prescribed a month long course of injections of ACTH. This was given to treat her MS symptomatology. She saw her GP. She completed the course, save for the last day. She says that in the course of this treatment, she suffered what she described as an eruption of high voltage electrical tension throughout her central nervous system. 20 She returned to Noumea and work. Her work was reduced to part time. Save for teaching yoga part time, she has not worked since late 1993. In December 1990, she returned to Sydney and saw Dr Lethlean for a second opinion. He may have accepted the diagnosis of MS. 21 The plaintiff says that since what was done by the defendants she has undergone ten years of treatment. She further says that despite this treatment she has been left with inter alia tinnitus, partial deafness, vision disturbance, permanent nerve irritation, damage to immune, circulatory and reproductive systems, sexual dysfunction, cognitive and memory damage. She described her physical experience as one of permanent electrical torture "indescribably agonising and terrifying violent electrical tension and pain" throughout her whole body, especially in her head and spine (particularly her neck) and genital nerves, weakness in her right leg and long term damage to her nervous, immune and reproductive systems. Further, she says that she has suffered a drastic impairment of her sexuality, fertility and ability to earn a living. Also, she says that she has been unable to run and that in the last two years she has had increasing weakness in her right leg and difficulty in walking. Her complaints have been described as a "constellation of symptoms". 22 The hearing commenced on Wednesday 28 February 2001. The court had been available to commence the hearing on Tuesday 27 February 2001. This was not suitable to the plaintiff. The hearing began with a lengthy opening address from the plaintiff. There was a written document of 43 pages. The opening occupied about 2½ hours. The hearing continued through Thursday 1 March 2001. At the end of what took place on that day, it appeared that the plaintiff was nearly at the end of her case in chief. On Friday 2 March 2001, she sought an adjournment. This was said to be for the purpose of enabling her to subpoena a number of witnesses (including Dr Lethlean). The opposed application was granted. 23 Following the granting of the adjournment, the plaintiff made the decision that she did not intend to call any of these witnesses. Arrangements were then made for the fixing of a date to resume the hearing. This was done in consultation with the List Judge and the earliest available date (23 July 2001) was allocated. 24 On 27 March 2001, the matter was listed before me for directions. On 20 April 2001, the plaintiff filed a Notice of Motion which came before Studdert J. This application proved to be abortive and was dismissed with costs. She was then in effect complaining inter alia of the delay that had been occasioned by the granting of her own adjournment application. She was also seeking a reversal of earlier evidentiary rulings. 25 The hearing resumed on 24 July 2001, because the court was unable to sit on 23 July 2001. Subject to the matter of further written submissions, the hearing was concluded on the afternoon of 26 July 2001. By then, both parties had handed up written submissions. The plaintiff had prepared what she describes as a closing address. It is a document of some 64 pages. Like the opening address, it is a product of prodigious effort notable for its length, detail and tendency for overstatement and/or mis-statement. At the request of the plaintiff, leave was given to serve further written submissions by 4.00pm on 31 July 2001. The leave was exercised by the parties (including the making of a further 17 pages of detailed submissions by the plaintiff). 26 The case was opened by the plaintiff as being about the nature of stress, stress related disease and toxic damage. It was said to raise a number of important legal and medical issues. It was said that she would show that all her symptoms were consistent with exposure to toxic agents and excess glucocorticoid levels. 27 In the written document, the plaintiff also said the following:- "Ten years after the injury, I did not expect to find myself before the court unrepresented and without an expert witness. I would have greatly preferred my case to have been conducted by professionals in the normal manner. But that has not happened, and this is not a matter that I could abandon. Not only did the treatment have a devastating effect on my life, but the issues raised are simply too important to walk away from. This case is about the nature of safe and adequate care for young women suffering severe stress or emotional trauma. It is about a patient's right not to be given high-risk or invasive treatment when it is obsolete and unnecessary. It is about the quality of information that patients are entitled to expect from doctors, and that both patients and doctors are entitled to expect from the health care and regulatory systems. It is about the need for important advances in the scientific understanding of steroid action and of the role of stress in physical illness to be recognised and reflected in altered clinical practice."

She gave oral evidence which supported the view that a purpose of the case was to focus attention on what she regarded as important work being done by "De Kloet and his colleagues". 28 Certain affidavit material was received into evidence (the plaintiff has sworn a lengthy affidavit which she says was based inter alia on contemporary notes). The plaintiff was cross-examined and exercised her right of re-examination. A significant amount of time was consumed in the tendering of documentary material and only some of it has been admitted into evidence (Exhibits A - O). Exhibit N is a report from her general practitioner in Noumea (Dr Fabre). 29 Largely, the plaintiff has proceeded to present a case which did not involve calling in the aid of expert medical evidence. It is common ground that this does not preclude her from being able to demonstrate negligence. She has said that she has not been able to get a report from a non-treating specialist. She has told the court that she has approached in the order of 45 experts. She has both obtained and served a report from her treating neurologist (Dr Garrick). She may have first seen him in about October 1991. He was required to attend for cross-examination. The plaintiff informed the court that she did not intend to rely on any report from Dr Garrick and no report from him was tendered. It has been said that in his various reports Dr Garrick does not appear to have made any conclusions as to the actual cause of her symptoms (Dr Walker). Dr Harvey attributes to Dr Garrick a diagnosis that MS was possible but not probable. On many occasions, at some considerable length, the plaintiff has sought to explain or justify the failure to make Dr Garrick available for cross examination (inter alia it was said that she did not consider that it was reasonable to expect a treating doctor to testify on behalf of an unrepresented plaintiff in a trial on liability). Despite the volume of the submissions, what has been said seems to me to be unconvincing. Generally speaking, one would expect that he would be a very important witness in her case. Instead of calling an expert, she attempted unsuccessfully to tender a vast body of documentary material (including material from publications). In doing so, she placed reliance inter alia on s 144 of the Evidence Act 1995 (the Act). 30 The first defendant himself has prepared a proof of evidence (Exhibit 3). Dr Grant Walker (a consultant neurologist) has provided a report. Both Dr Walker and the first defendant have been cross-examined. In the case of Dr Walker, further cross-examination was abandoned after it had been completed in part only. In both cases, the cross-examination that was had was lengthy, repetitious and aggressive. Sometimes her questions were of considerable length and in the nature of an address raising a multiplicity of matters. 31 Apart from what has been tendered by the plaintiff, the defendants have also tendered other documentary material (including reports from medical experts). There are reports from inter alia Drs Bowers, Cashman, J B Walker and Harvey. 32 Dr Harvey is an expert located in Harley Street, London. He had been retained by solicitors then acting for the plaintiff. He has provided a lengthy report which fails to support the plaintiff's case. It is dated 9 March 1999. The court has been told that the plaintiff herself served the report on the defendants. 33 There are areas in which credibility has significance in this case. I have closely observed the demeanour of witnesses during the giving of evidence. In assessing credibility, I have had regard both to demeanour and evidence. 34 The plaintiff is both intelligent and articulate. In the presentation of her case, she demonstrated a tendency to either overstate or mis-state material for the purpose of advancing her prospects of success. She has given evidence that reflected a memory which was not as good as she presented it to be. I was left with the impression that there were aspects of her material which have to be regarded as being implausible or unreliable. 35 The first defendant is an eminent neurologist. He gave evidence in an extremely fair and measured manner. He met his cross-examination with patience and frankness. He impressed me as an honest and reliable witness. I accept his evidence. 36 The material throws up questions of fact concerning inter alia the plaintiff's presentation as to her symptomatology during the period that she was in hospital and her presentation as to her condition since August 1990. 37 There is conflict between her presentation and other evidence. Her presentation and written list of symptoms is in conflict with the Hospital records. The written list and her other evidence throw up discrepancies. In her oral evidence the plaintiff took the stance that largely, she made her complaints to the doctors rather than to the hospital staff. What she has said in her affidavit was in conflict with what was said by the first defendant (in particular in paragraph 27 of Exhibit 3, the first defendant disputes material deposed to in her affidavit) and other material. Whilst presenting as having a normal memory for the period of hospitalisation, her oral evidence fell short of that presentation. 38 There is the lack of support from expert evidence. There is the conflict with expert evidence. In his report, Dr Harvey observed after 3½ hours of consultation and being presented with further documentation (a 73 page booklet) "I am afraid that there are a large number of misconceptions contained here". 39 Generally speaking, where there is conflict, I do not prefer the plaintiff's evidence to the competing material. Indeed, I regard the competing material as more reliable. 40 The onus rests with the plaintiff to prove the case advanced by her. I shall first look at her professional negligence claim. To prove a case of negligence, she must not only prove breach of duty but also damage causally related to that breach. She must prove that on the balance of probability. In my view, she has failed to discharge that onus in respect of both matters. 41 The relevant legal principles are not in issue. The court has been referred to a number of decided cases (including Bergman v Haertsch [2000] NSWSC 528; Rogers v Whittaker (1992) 175 CLR 479; Chappel v Hart (1998) 195 CLR 232; Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 and Rosenberg v Percival [2001] HCA 18). For completeness, I should mention that the plaintiff has indulged in prodigious research and has herself referred the court to a vast body of case law. It is largely unnecessary, at this point, to refer to what has been said in those cases. It is the evidentiary considerations which are of primary importance. 42 I shall turn in general terms to the case that is advanced against the defendants. There are complaints concerning diagnosis, treatment and failure to warn. Before proceeding to deal with them, there are some matters to which I should briefly refer. 43 There has been reference to s 80 of the Act. The cases establish that evidence of professional practice and opinion is relevant, but not conclusive. It may be the primary, and in some cases it may be the only basis upon which a court may reasonably act ( Rosenberg ). In this case, it seems to me that the professional evidence provides a basis upon which the court can reasonably act. 44 The authorities caution of the danger in evaluating evidence given by a plaintiff in cases of failure to warn. In this case adverse observations have been made as to inter alia the reliability of the plaintiff's evidence. The court is to take account of the context in which a contingency has to be evaluated. In this case there was inter alia detailed discussion and the potential of a life threatening situation. 45 Broadly speaking, the defendants take the approach that the foundation of the case presented by her is littered with either mis-statements as to evidence or assumptions which lack evidentiary basis. There is considerable substance in what is said. The effect of what she has done is to provide a presentation of mis-statements or assumptions which persisted throughout the hearing (including in her closing address). 46 Without intending to be exhaustive, it is convenient to briefly refer to some of these matters. 47 There are mis-statements as to her condition both when she entered the hospital ("with 'a small hypertonia of the striated sphincter' and occasional tingling on the sole of the left foot" ) and when she emerged from it five weeks later ("with violently abnormal electrical activity throughout my whole body" ). 48 There is a mis-statement by the plaintiff to the effect that all defence experts acknowledge that myelography involves significant risks. The evidence merely shows that there were some risks only and that these were of a transitory nature. 49 There is the oft repeated erroneous assertion that the contrast medium was injected into the cervical cord. The evidence is to the contrary. It was not injected into the cord but around it. 50 There is the erroneous assertion that the first defendant implicitly acknowledged that his 1990 decision to begin investigation with a myelogram was a mistake. This contention is not open on the evidence. Again, the evidence is to the contrary. 51 Whilst the plaintiff's pleading does not make any allegation of negligence as against Dr Millard, there is an assertion that he used a contrast medium in the urodynamic test and that the Hospital records fail to record the nature and the quantity of the contrast medium used. The effect of the evidence is that no contrast medium was in fact used (the probability is that saline was used). There was also an allegation of negligence made against the radiology registrar which was ultimately not pursued. 52 The plaintiff has founded argument on the oft repeated assertion that she had an elevated blood sugar level (inter alia at the time steroids were prescribed). Again, the evidence in fact is to the contrary. The first defendant said that it was normal. Dr Harvey did not see the level as being responsible for any subsequent suffering. 53 There is an assertion that the first defendant acknowledged that damage could be caused not only by a myelogram but also by prolonged treatment with steroids and ACTH. This is also contrary to the evidence. Also, it needs to be added that, in neither case was there prolonged treatment. 54 In her closing address, contrary to what had been earlier said, the plaintiff sought to change her position in relation to the matter of not relying on Dr Garrick and asserted that she no longer had the option of calling Dr Garrick because he was currently out of the country. There is no evidence that he was currently out of the country. Previously, it had been put by her that it was her decision not to require him to come to court and give evidence. 55 The plaintiff has given two notices to produce. In her closing address, she falsely asserted that none of the documents referred to in the notices have been produced. The actual position is that certain documents only have not been produced. The defendants say that they have produced the documents which they have. 56 Much has been said by the plaintiff throughout the hearing about an allegedly missing document (which I understand to be a laboratory document) dealing with CSF results. Whilst the position is not entirely clear, it may be that there was no such document. If there was such a document, it is no longer available. There had been reporting of these results in the case notes. The first defendant seemed to regard the matter as being inconsequential. In the circumstances of this case, that view seems to me to be well founded. 57 The plaintiff has also asserted in her closing address that in 1990 it was orthodox practice, where there was suspicion of MS, to begin investigation with an MRI. This did not accurately reflect the state of the evidence at that stage. Leaving aside questions of orthodox practice, in this case the myelogram was used in relation to a diagnosis of compression. It was not used to test a diagnosis of MS. 58 In her opening address the plaintiff identified certain questions as being material on the question of negligence. In submissions, the parties have taken the approach of addressing these questions. Accordingly, it is probably helpful if a similar approach is taken in the judgment. 59 An initial question raised by the plaintiff is whether or not the diagnosis of MS was appropriate. The plaintiff had a history of neurological problems going back to 1984. Investigations into her urinary problems suggested a neurological cause (a view later confirmed by inter alia Dr Harvey who said that the urologist's report on the bladder symptoms confirmed an upper motor neurone disturbance of the bladder and thus the spinal cord had to be investigated). This brought her to the first defendant, who initially proceeded to use a myelogram in relation to a diagnosis of compression. According to Dr Harvey, in addition to the bladder symptoms, there were other symptoms and signs indicating a problem with the cervical spine. 60 The evidence does not demonstrate that the diagnosis was inappropriate. Indeed, in addition to what has been said by the first defendant, there is a significant body of material that demonstrates either that it was a correct diagnosis or at least consistent with her symptoms. There is expert evidence that she would have fitted the Poser criteria for "definite" MS. The plaintiff has not led expert evidence which demonstrates that she does not suffer from MS. Indeed, she has left the court with a lack of expert evidence as to the diagnosis of her condition. 61 For completeness, it needs to be added that even if the question had been one answered favourably to the plaintiff this would not have been of significance in these proceedings. It is not said that she should have been treated for some other condition. Its relevance seems to be restricted to the prescribing of ACTH. 62 The plaintiff fervently disputes the diagnosis. Her doing so is eminently understandable. However, the precise diagnosis of her condition is not a matter that needs to be determined in this litigation. Be that as it may, she gave the impression that the disputation of the diagnosis was a significant factor behind the commencement and the prosecution of these proceedings. 63 There is a question as to whether or not it was appropriate to investigate the plaintiff's symptoms with a myelogram. There is no issue that these days an MRI would be regarded as the appropriate procedure. However, that was not the position in 1990 (when it "was almost certainly still the gold standard" ). At that time, whilst certain other practitioners may have preferred to use an MRI, in addition to what has been said by the first defendant, there was at least a substantial body of opinion that favoured the use of a myelogram as a legitimate alternative where there was a clinical suspicion of compression of the spinal cord. In this particular case, there were other circumstances and matters which rendered the procedure appropriate (including the need for a quick diagnosis because of the serious risk to the patient, the unavailability of the alternative and the particular advantages of the myelogram in the circumstances of the case). 64 The plaintiff has sought to challenge a diagnosis of compression ("it is doubtful that there was 'significant' suspicion of spinal cord compression" ). I do not accept this submission. It is contrary to the evidence (inter alia Dr Harvey said that her clinical presentation "indicated very firmly that she had to have her cervical spine and cervical spinal cord imaged"). 65 It may be added that if there had been a negative result from an MRI, a lumbar puncture to examine her CSF (with at least some similar risks) might have still been required. 66 There was a question as to the appropriateness of the dose of contrast medium used (3.6g of contrast). On this question, the plaintiff's contention also founders by reason of evidentiary considerations. Even if the recommended dose prescribed was exceeded this does not lead to the conclusion that there was a breach of duty which caused the injury of which the plaintiff complains. There is no evidence that the maximum dose was exceeded. There is evidence that when a lumbar injection site is used more dye is required. The contrast has been said to be neurotoxic to a slight degree. There is evidence from a medical expert (Dr Cashman) that the use of 3.6g of contrast did not represent a departure by the radiologist from standards of reasonable care and competence of a practising radiologist. Indeed, Dr Harvey took the view that it was highly improbable that any of the plaintiff's residual or subsequent symptoms related to the use of Omnipaque. He rejected the contention of toxic exposure. Further, he said that her symptoms of problems with the spinal cord preceded the myelogram. 67 There were questions relating to the appropriateness of the prescription for the steroids and ACTH. On this question, the plaintiff's contention also founders by reason of evidentiary considerations. Again, although there is evidence that certain practitioners may have had a preference for other treatment, the evidence does not assist the plaintiff on these questions (inter alia Dr Harvey regarded both prescriptions as appropriate). He rejected the contention of seizures. He thought that it was reasonable to prescribe ACTH because she had an inflammatory demyelinating lesion in the spinal cord. His evidence receives support from Dr Walker, and the first defendant. I am not satisfied that treatment was inappropriate. Indeed, I prefer the view that both treatments were appropriate. 68 There was a question as to whether or not it was appropriate to make arrangements to monitor the plaintiff's response to the steroids. The first defendant in his evidence has persuasively rejected the need to do so. There is evidence from both Dr Harvey and Dr Mellick to the effect that none of the symptoms alleged by the plaintiff relate to the treatment. On the evidence, the plaintiff must fail on this issue. 69 There were questions concerning the need to inform. These questions have been encapsulated in terms of was it appropriate not to inform the plaintiff of the risks of a myelogram, the availability of a non invasible alternative (namely MRI scanning), and of the full risks of steroid and ACTH treatment. 70 Two complaints are made concerning the myelogram. The plaintiff complains that she should have been warned that the contrast medium would have gone into her head and that the myelogram could cause her continuing problems with neck and trapezius pain. 71 There is no evidence that the dye ever went into her head. There is evidence which indicates that this was not the case. 72 The evidence fails to relate her complaints of pain with the myelogram. There is evidence (Dr Walker) that the subsequent suffering of neck pain had nothing to do with the myelogram. 73 The plaintiff was warned about the risk of headache. She may well have been warned that there may be transient aggravation of existing symptoms. On her own evidence, the headache and RSI symptoms were subsiding when she left hospital. 74 Aspects of these questions have been earlier discussed. It is unnecessary to repeat what has been already said. For completeness, it should be observed that the plaintiff was at the time reluctant to undergo an MRI. 75 There is evidence that information given as to treatment was appropriate (see inter alia Dr Harvey). As has been also earlier said, the treatment and the plaintiff's symptoms are unrelated. 76 In the light of the relevant evidence and what has been earlier said the answers to these questions do not assist the plaintiff. 77 Finally there was a question as to the cause of the neurological symptoms of which the plaintiff complains. 78 Her evidence as to high voltage activity in her central nervous system is not supported by medical evidence (in particular the evidence demonstrates that you can't have such electrical activity in the spinal cord). 79 The evidence led by the defendants reveals that there are differences in the approaches taken to diagnose her problems. 80 Dr Harvey rejected the contention that she had RSI. He said that "Neurologically there are a number of abnormalities". He opined that she had neuralgia amyotrophy. He thought the "massive probability" is that she now suffers from a demyelinating disease in the spinal cord (possibly MS) and that it had been responsible for her symptoms. He identified "demyelinating process" as a generic name for a group of diseases including MS. His prognosis was "Poor". Dr Mellick attributes her problems to MS. Dr Walker saw her problems as a combination of psychological overlay and physical problems. Despite these differences, the evidence does not relate them to either the myelogram or the treatment. 81 It should be added that Dr J B Walker opined that his testing did not support the plaintiff's claim that her hearing was deteriorating and he was unable to relate her hearing loss to the myelogram and subsequent treatment. For completeness, it should also be added that whilst the plaintiff challenged the accuracy of the history contained in the report, she did not challenge the opinions expressed therein. 82 I now turn to the allegation of assault. Australian authority has taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to a patient can only found an action in negligence and not in trespass ( Rogers p 490). Consent is relevant to actions founded in trespass only. The plaintiff did consent in writing to myelography following detailed discussion. Consent is satisfied if, in broad terms, she was informed as to the nature of the procedure prior thereto (as was the position in this case). She had knowledge of the MRI procedure. Her evidence does not establish a lack of knowledge as to it being an available alternative procedure. 83 The plaintiff has sought to rely on what was said in Forst [Rich ACJ (as he then was) at 563] concerning the presumptive inference inspired by a sequence of events. In the circumstances of this case, it does not solve the plaintiff's problems. It needs to be borne in mind that this is a case in which there is a persuasive body of expert evidence which rebuts the presumptions upon which the plaintiff seeks to rely to assist proof of her case. In addition, there are problems which her own evidence presents in respect to the inspiring of the presumptions. 84 Both sides have asked the court to draw inferences by reason of failure to place material before the court. Because of the weight of evidence that was in fact led it seems to me that this is an area that need not be pursued. Those inferences which the plaintiff has sought to have drawn would not solve her evidentiary problems. 85 If it were necessary to do so, it seems to me that the inference can be drawn from the plaintiff's failure to rely on Dr Garrick, that his evidence would not have assisted the plaintiff's case. 86 In the circumstances, the court can only conclude that the plaintiff's case fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned. **********

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