Williams v Burton

Catchwords: NEGLIGENCE – causation – medical negligence – where plaintiff alleges delayed diagnosis of syphilis – whether evidence sufficient to establish causation between breach of duty and harm suffered
EVIDENCE – where defendants apply for judgment at close of plaintiff’s case – UCPR r 29.10 – “jury test” to be applied – whether plaintiff’s evidence taken at its highest could support a judgment

Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D, 5E
Evidence Act 1995 (NSW) s 136
Uniform Civil Procedure Rules 2005 (NSW) rr 29.10, 31.29

Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Alrifai v ACT [2024] ACTCA 13
Austen v Tran [2022] ACTSC 114
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Garzo v Liverpool/Campbelltown Christian Science School Ltd [2012] NSWCA 151
Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16
Hunt v Watkins (2000) 49 NSWLR 508; [2000] NSWCA 229
Mailman v Ellison (Court of Appeal (NSW), 25 November 1993, unrep)
Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956
Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22
Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58
St Paul’s College Ltd v Allan [2026] NSWCA 22
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Williams v Fraser [2022] NSWCA 200

Category: Principal judgment

Parties: Matthew Norbury Williams (Plaintiff)
Robert Burton (Third Defendant)
Mark Bloch (Fourth Defendant)

Representation: Counsel:
M Hutchings (Defendants)
Solicitors:
Makinson d'Apice Lawyers (Defendants)
Plaintiff (self-represented)

File Number(s): 2020/00277516

JUDGMENT

1. Mr Matthew Williams brings an action in negligence against two doctors for their failure to diagnose him with, and treat him for, syphilis when he consulted them, from which he alleges he has suffered harm.

2. Mr Williams attended the Holdsworth House practice in Sydney for treatment in 2018. He had one consultation with the Third Defendant, Dr Robert Burton, on 30 May. He had three subsequent consultations with the Fourth Defendant, Associate Professor Mark Bloch (Dr Bloch), on 13 July, 3 August and 13 August. The essence of Mr Williams’ claim is that on each of those occasions he had syphilis and Dr Burton and Dr Bloch should have elicited his history, ordered appropriate testing, diagnosed him with that infection, and commenced a course of treatment. Mr Williams was eventually diagnosed with secondary syphilis at the Royal North Shore Hospital on 14 November 2018.

3. Because of his untreated syphilis, Mr Williams says he suffered:

4. injury to his left eye including blurred vision, which required vitrectomy;

5. injury to his cervical spine, including pain and restriction of movement;

6. psychological and psychiatric injury;

7. shock; and

8. general bodily and psychological trauma.

9. These injuries are said to have caused many continuing disabilities which affect Mr Willams’ capacity to function in daily life.

The proceedings

5. Mr Williams commenced these proceedings in the District Court on 24 September 2020. There were originally four Defendants, but judgment for the First and Second Defendants was given by consent on 18 October 2021. The proceedings were transferred to this Court on 13 May 2022.

6. Until February 2025, solicitors were retained to act for Mr Williams. He has been self-represented since then. On 1 August 2025, the matter was set down for hearing for eight days commencing on 4 May 2026. The matter was called on for trial before me on that date.

7. At the commencement of the hearing Mr Williams opened his case, which was pleaded in an Amended Statement of Claim filed on 27 March 2026 (ASOC). He read an affidavit affirmed on 3 April 2026 and tendered his Evidentiary Statement filed on 6 September 2023. Mr Williams also tendered his court book, which included a variety of material, comprising approximately 2000 pages. I admitted that evidence provisionally, subject to objections taken by Mr Hutchings of Counsel, who appeared for the Defendants. Many of the documents, which might otherwise have been excluded, were admitted subject to relevance, on the basis that they be treated as submission, or subject to a limitation under s 136 of the Evidence Act 1995 (NSW). This was facilitated by the constructive and commonsense approach adopted by Mr Hutchings in light of the fact that Mr Williams was not legally represented.

8. The most significant objection was taken to several expert reports that Mr Williams proposed to rely upon. Mr Williams served 11 expert reports on the Defendants prior to the hearing. The Defendants required the authors of those reports to be made available for cross-examination. It became apparent that Mr Williams had only arranged for two experts, Dr James Lynch and Dr James Athanasou, to attend. On that basis, the Defendants objected to the admission of the balance of the reports into evidence. For reasons given ex tempore on the first day of the hearing, I rejected the balance of the reports under r 31.29(5) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

9. Mr Williams was cross-examined for around a day. That evidence concerned his history of behaviour with medical practitioners, his unwillingness to listen to and accept their medical advice, and his sexual history which he says gave rise to his illness. It is not necessary for the purpose of these reasons to recount that cross-examination in detail. It suffices to observe that, in submissions at the end of the third day of the hearing, Mr Williams’ assessment of that cross-examination was that “the Defendants have shown that perhaps at times I have not shown good conduct or been of good character”.

10. Dr Lynch and Dr Athanasou were briefly cross-examined. They each gave clear evidence and made appropriate concessions about the limitations of their reports and the assumptions which informed their conclusions.

11. At approximately 2.30 pm on the third day of the hearing, Mr Williams closed his case.

The Defendants’ application

12. At the conclusion of Mr Williams’ case, the Defendants applied for judgment in their favour on the ground that, on the evidence given, a judgment for Mr Williams could not be supported, pursuant to UCPR r 29.10. That rule provides as follows:

29.10 Judgment for want of evidence

(1) An opposite party may apply to the court to give judgment for the opposite party, either generally or on any claim for relief in the proceedings, on the ground that, on the evidence given, a judgment for the beginning party could not be supported.

(2) Such an application may be made at any time after the conclusion of the evidence for the beginning party in his or her case in chief.

(3) The court may not give judgment under this rule unless the opposite party satisfies the court that, on the evidence given, a judgment for the beginning party could not be supported.

(4) If the opposite party fails to satisfy the court that, on the evidence given, a judgment for the beginning party could not be supported, the opposite party may not adduce evidence or further evidence in the proceedings generally or on the claim for relief concerned, as the case may be, except by leave of the court.

(5) If not all opposite parties apply to the court under subrule (1), the court must not deal with any such application before the conclusion of the evidence given for all parties.

13. When determining an application under r 29.10 the Court is to apply a “jury test”, such that a plaintiff’s evidence must be taken at its highest: Hunt v Watkins (2000) 49 NSWLR 508; [2000] NSWCA 229 (Hunt) at 510 [10] (Stein JA, Fitzgerald and Heydon JJA agreeing). Another manner of framing this test is that the plaintiff’s case must be dismissed “if the evidence adduced … was such that a verdict in his favour by a jury would, if challenged, necessarily be set aside”: Hunt at 510 [8], quoting Mailman v Ellison (Court of Appeal (NSW), 25 November 1993, unrep) at 4 (Mahoney JA, Kirby P and Sheller JA agreeing). The question is whether judgment could be entered in the plaintiff’s favour, not whether it should be.

14. It follows that the evidence adduced by the plaintiff will, unless withdrawn, ordinarily have to be regarded as uncontradicted despite any perceived inconsistencies or contradictions revealed in cross-examination, because an assessment of the quality of that evidence is a matter of weight in the province of the tribunal of fact: Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22 at 283 [42] (McHugh J).

15. Therefore, if a plaintiff makes out a prima facie case, the case cannot be peremptorily terminated even if there is “overwhelming” rebuttal evidence to the contrary: De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 5 (Jordan CJ). However, if the necessary evidence adduced by the plaintiff “is so negligible in character as to amount only to a scintilla”, then a verdict can properly be directed: Hocking v Bell (1945) 71 CLR 430; [1945] HCA 16 at 441 (Latham CJ).

What does Mr Williams need to prove?

16. To succeed against the Defendants, Mr Williams must establish that:

17. the Defendants owed him a duty to take reasonable care not to cause the pleaded harm;

18. the Defendants breached that duty; and

19. the Defendants’ breach of duty was the cause of the harm.

Duty of care

17. There are several categories of relationships in which the law recognises a duty of care exists. A plaintiff is generally able to establish the existence of a duty of care if the relationship at issue falls within one of those categories: St Paul’s College Ltd v Allan [2026] NSWCA 22 at [42] (Kirk JA, Payne JA and Price AJA agreeing). The parties here agree that the Defendants, being medical professionals, owed Mr Williams a duty of care.

18. A duty of care arising under the common law and modified by the Civil Liability Act 2002 (NSW) (the CLA) requires that reasonable care be taken to avoid an identified risk of harm: Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956 at 965 [29]; Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (Vairy) at 432 [25] (McHugh J).

19. The duty of care owed by a medical practitioner is to exercise reasonable care and skill in the provision of treatment and professional advice. That duty extends to, relevantly, the examination, diagnosis and treatment of the patient: Rogers v Whitaker (1992) 175 CLR 479; [1992] HCA 58 (Whitaker) at 483 [5]. The standard of care required in this case is that of the ordinary skilled person exercising and professing to have that skill: Whitaker at 487 [12].

20. The Defendants submit that Mr Williams has reverse-engineered a scope of duty by starting from his diagnosis in November 2018 and then looking back for earlier opportunities for diagnosis. Such an approach would be plainly wrong because whether a defendant has failed to exercise reasonable care must be assessed prospectively: Vairy at 461–463 [124]–[129] (Hayne J).

Breach

21. Division 2 of Pt 1A of the CLA contains the principles concerning breaches of duty. Section 5B provides as follows:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

22. Section 5C provides:

5C Other principles

In proceedings relating to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

23. Accordingly, in assessing whether the Defendants breached their duty to Mr Williams, I must consider whether there was a foreseeable risk of harm to him, whether that risk was not insignificant and what precautions (if any) a reasonable person in the Defendants’ position would have taken to ameliorate such a risk.

24. The ASOC did not on its face identify a foreseeable risk of harm. This was raised with Mr Williams early on the first day of the hearing and I gave him time to consider the issue. After a short adjournment, he stated that the risk was the infection with syphilis and neurosyphilis as at [108] of the ASOC. That paragraph reads as follows:

“108 On 14 November 2018, the Plaintiff was diagnosed with Syphilis and Neurosyphilis. The Attending Dr, Dr Figtree, Leader for the infectious Diseases Team at Royal North Shore Hospital, told the plaintiff that he was ‘lucky’ that the infection had presented in his eye’.”

25. The Defendants submit, and I agree, that the posited risk is inapt.

26. To determine what would have been a reasonable response to a particular risk, that risk must be properly identified: Garzo v Liverpool/Campbelltown Christian Science School Ltd [2012] NSWCA 151 at [25] (Meagher JA). In considering whether the Defendants ought to have foreseen any pleaded risks, it is necessary to identify those risks with precision: Vairy at 432 [26] (McHugh J), 443 [60]–[61] (Gummow J).

27. Mr Williams’ case is premised on the Defendants’ failure to ask him proper questions, take a sexual history and conduct a broad suite of STI tests. Those steps might have prevented exacerbation of Mr Williams’ syphilis, but they would not have decreased any risk of infection. Mr Williams’ case cannot be sustained based on the risk he identifies.

28. Based on the way that Mr Williams’ presented his case, the risk of harm is better framed as the risk that his syphilis, if left untreated, would progress to a stage where it would cause serious health complications. For Mr Williams’ benefit, I will treat that as the pleaded risk of harm.

29. As stated at [3]–[4] above, the Plaintiff identifies the injuries and disabilities he has suffered which make it difficult for him to work and socialise.

30. The high point of Mr Williams’ evidence on breach is Dr Lynch’s criticisms of the Defendants. Regarding Dr Burton omitting to provide a broader STI test to Mr Williams, Dr Lynch writes:

“It is my opinion that Dr Burton, at that consultation, ought to have proceeded to a more comprehensive STI assessment. The reason for him simply doing HSV serology was not recorded. That was a serious error and incompetence.

It is my professional opinion that a patient with the history as recorded, which was something that Dr Burton knew or ought to have known because it was included in the medical records, specifically of a divorced man previously exposed to chlamydia who had not had a comprehensive STI check ‘for years’ required far more than HSV screening. Clearly and logically if a male was considered to be at risk or likely to have, as a differential diagnosis, HSV then such a patient was clearly at risk, in the specific circumstances of Mr Williams, of other STIs and consequently needed counselling, advice and rigorous testing for other STIs to enable early detection, and early treatment, prior to development of complications consequent upon untreated STIs including syphilis.”

31. Dr Lynch is similarly critical of Dr Bloch regarding the 13 July 2018 appointment:

“It was clearly obvious that at that consultation, Mr Williams was a 44-year-old male with persistent perianal fissuring and previous chlamydia exposure and who had not been provided with any comprehensive STI testing. The HSV testing was negative but… was inadequate and incomplete…”

32. Dr Lynch’s opinion was that the risk was foreseeable, not insignificant and that a reasonable person in the Defendants’ position would have taken steps to more thoroughly investigate Mr Williams’ symptoms, including by recommending a comprehensive STI assessment. He confirmed in cross-examination that that opinion was premised on the assumption that Mr Williams in fact had syphilis when he consulted the Defendants; he could not say when Mr Williams contracted syphilis: Tcpt, 5 May 2026, p 196(17–43).

33. Taking Mr Williams’ evidence at its highest, I am satisfied that, assuming Mr Williams had syphilis on the relevant occasions, the risk was reasonably foreseeable, not insignificant and that a person in the Defendants’ position exercising reasonable care and skill in the provision of treatment and professional advice would have taken those steps. That is the beginning rather than the end of the chain of liability.

Causation

34. Mr Williams must establish that the Defendants’ breach was the cause of the harm he suffered. Whether the Defendants’ alleged negligence caused that harm is to be determined in accordance with ss 5D and 5E of the CLA, which provide:

5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

5E Onus of proof

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

35. Section 5D divides causation into two elements, namely, factual causation and scope of liability. Factual causation under s 5D(1)(a) is an application of the “but for” test, meaning that Mr Williams must establish on the balance of probabilities that the harm which occurred would not have occurred without the Defendants’ negligence: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at 383 [16]; Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at 190 [18]. He must show that it is more probable than not that the harm would have been prevented or lessened if the Defendants had taken reasonable care. It is not sufficient for Mr Williams to show that there might have been a different outcome if the Defendants had taken different steps: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at 442 [50], [53].

36. Determination of the scope of liability under s 5D(1)(b) rests on whether it is appropriate for the alleged tortfeasor’s liability to extend to the harm caused: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170 at 209 [143] (Gageler CJ, Jagot and Beech-Jones JJ).

37. The evidence would need to establish that, had the Defendants advised Mr Williams in accordance with [32] above, he would have received an earlier diagnosis and the consequences of starting treatment earlier would have prevented Mr Williams from suffering at least some of the consequences of the infection.

38. Mr Williams submitted that there is a substantial body of evidence relating to the importance of early testing. That is undoubtedly an important matter. However, it alone does not advance his case against the Defendants. For Dr Lynch’s criticisms of the Defendants’ conduct to assist Mr Williams’ case on causation, there must be some evidence suggesting that he may have already contracted syphilis by the time of those appointments. Dr Lynch accepted during cross-examination that he could not offer an opinion as to whether Mr Williams was infected with syphilis at the time of those appointments. His criticisms are therefore made on the assumption that Mr Williams was infected at the time of the appointments with the Defendants.

The case against Dr Burton

39. It is common ground between the parties that Mr Williams only attended one consultation with Dr Burton on 30 May 2018. The best evidence that Mr Williams has adduced concerning when he was infected with syphilis is the report of Associate Professor Phillip Braslins (Dr Braslins) dated 7 June 2021. That report was prepared at the instruction of the Defendants’ solicitors, but Mr Williams tendered it in his own case.

40. On page 2 of that report, Dr Braslins opines that “Mr Williams had onset of syphilis infection some time after 13 July 2018 and at least one week before 9 November 2018”. Mr Williams’ evidence about the lesion on his penis, which I shall address below, was that it appeared shortly before 10 July 2018, long after he consulted Dr Burton.

41. Plainly enough, it would be impossible for Dr Burton to have diagnosed Mr Williams with an illness which he did not have when he presented for assessment. On this basis alone, the case against Dr Burton must fail.

The case against Dr Bloch

42. Mr Williams consulted with Dr Bloch on 13 July, 3 August and 13 August 2018. Because Dr Braslins considered that the syphilis was first contracted “some time after 13 July 2018”, there can have been no breach at the first consultation (which pre-dated this). However, on Dr Braslins’ evidence, it is possible that Mr Williams did have syphilis when he attended Dr Bloch on 3 and 13 August 2018. For the purposes of this application, I accept that he did.

43. In both the ASOC and the 3 April 2026 affidavit, Mr Williams refers to a red lesion that appeared on his penis shortly before 10 July 2018. That lesion disappeared after around four weeks. Mr Williams’ evidence is that he later understood it to be a lesion typical of primary or secondary syphilis. In cross-examination, Mr Williams accepted that he never mentioned the lesion to either Defendant. In submissions on the Defendants’ application, he characterised it as a “private symptom” the import of which he did not comprehend. Rather, he confused it with a superficial bacterial skin infection which appears on his skin from time to time.

44. Even if the lesion constituted evidence of the presence of syphilis during the first consultation with Dr Bloch, it goes nowhere because Mr Williams did not disclose it to him.

45. Mr Williams must then establish by evidence that that breach of duty caused the harm he suffered. The Defendants submit that there is no evidence of causation in relation to the counterfactual scenario where there would have been a timely diagnosis of syphilis.

46. Mr Williams was plainly aware of the significance of establishing a counterfactual. Included in the bundle of documents he tendered was a diagrammatic representation of causation, prepared by Mr Williams, which was divided into two segments. One segment was concerned with what Mr Williams described as the “Actual world (with negligence)”. The other segment was described as the “Counterfactual world (without negligence)”. In the “Counterfactual world” Mr Williams hypothesises that, had the Defendants provided STI information, he would have disclosed his symptoms and requested an STI test. This evidence, of what he would have done, is inadmissible under s 5D(3)(b) of the CLA. Putting that aside, however, Mr Williams’ causation diagram identifies that had he been aware of the risk and obtained an STI test, the syphilis would have been detected earlier and that, ultimately, this would have prevented serious complications or greatly reduced them.

47. Despite Mr Williams’ understanding of the need to demonstrate a causal link establishing that earlier treatment would have prevented or “greatly reduced” serious complications, no admissible evidence was marshalled by him to establish this critical evidential limb of the case.

48. During argument on the Defendants’ application, the following exchange took place between the Court and Mr Williams (Tcpt, 6 May 2026, p 266(29) – 267(40)):

“HIS HONOUR: If you go to that causation diagram and you have obviously, you're aware of this notion of counterfactuals, because you in fact have got a whole column devoted to it.

PLAINTIFF: Yep.

HIS HONOUR: You'll see if you come down to the very last dialogue box on the bottom of the page on the right-hand column, you'll see there it says "Serious complications prevented or greatly reduced". That may well be a convenient launch point for a question that I asked you I think at the very beginning of our exchange, which is, where is the evidence that informs that dialogue box?

What Mr Hutchings says is that he probably agrees with the way you've set this out. I don't know. But it seems a reasonable way to approach the exercise. But what he says is that following this logical exercise that you've undertaken, where is the evidence you've presented the Court that establishes the key part of this which is serious complications prevented or greatly reduced? Apart from your say so?

You see this document itself seems to be an admission in a sense, an acceptance by you that in order to establish the counterfactual by comparison to what you have on the left-hand side of the page, which is what you say in fact occurred versus what you say should have occurred had there been no negligence. The difference between these two things is found in the bottom two dialogue boxes when you compare.

On the left-hand side you have a dialogue box that says it's untreated, right? You say "STI progresses to serious complications". Then you say on the right‑hand dialogue box had there been no negligence there'd been a timely diagnosis of the infection, you say the serious complications would've been prevented or greatly reduced. Mr Hutchings says, all right if that is your case and you appreciate and understand that is what you need to establish because you've helpfully set it out here, where is the evidence that establishes that? Because you can see from your own diagram everything seems to end at that point.

PLAINTIFF: Certainly, your Honour, yes, I, I think the diagram shows clearly the situation, so, yes, your Honour, I appreciate the question too and I thank you for putting it. I realise I'm standing in the Supreme Court and I'm not at all an expert or I'm not a person of significance or anything like this. In fact, the defendants have shown that perhaps at times I have not shown good conduct or been of good character. Your Honour, in contemplating this case, it became apparent to me by way of the research that I was doing that there are instances where injuries occur that are difficult to quantify, and I don't want to show an arrogance here, your Honour. But I consider that that should not exclude a person from seeking the support of the Court in a - in a judgment. It, it - I don't know how that relates to case law, and I know that's a hell of a presumption.

HIS HONOUR: I just want to understand very clearly, because this is important.

PLAINTIFF: Yep.

HIS HONOUR: Are you telling me that there is no evidence?

PLAINTIFF: The - I, I would be saying to you, your Honour, that the evidence that I have may well be all that we can get because of the nature of the disease. It is not such that we have cases of - as we've noted, it can only be detected therefore it's already started. So, it's very difficult to quantify how much harm occurred before and after.”

49. The significance of the absence of counterfactual evidence can be illustrated by reference to a number of cases.

50. In Austen v Tran [2022] ACTSC 114, McWilliam AJ (as her Honour then was) considered a case concerning an alleged delayed diagnosis of non-Hodgkin’s lymphoma. The plaintiff sued her general practitioner alleging that he negligently failed to diagnose her non-Hodgkin’s lymphoma at consultations on 17 October 2016 and 15 July 2017. At the first consultation the general practitioner made a differential diagnosis of iron deficiency when the plaintiff presented with severe pain in her leg. The plaintiff returned to see the general practitioner in July 2017 with continuing symptoms. In August 2017 a radiology report identified a possible abnormality and recommended further imaging. She was eventually diagnosed on 19 September 2017 by which time the disease was terminal.

51. Her Honour was required to consider whether the general practitioner breached his duty of care at either of the impugned consultations and, if so, whether the breach caused the plaintiff’s harm; specifically, whether competent care would have led to a materially earlier diagnosis and a materially different clinical outcome. As to causation, the Court found that the plaintiff was required to establish two matters on the balance of probabilities: first, that a reasonably competent general practitioner would have been able to detect the non-Hodgkin’s lymphoma at the time of one or both consultations and, secondly, that an earlier diagnosis would more probably than not have avoided the harm or reduce the extent of the injury. Her Honour found, as to the ‘prognosis counterfactual’, that any delay in diagnosis had no bearing on the plaintiff’s contraction of the disease. At best, an earlier diagnosis would only have improved the chance of an extended remission. It would not have avoided the disease or its terminal trajectory. The plaintiff was thus only deprived of the chance of a better outcome, which is not compensable damage unless the better outcome is the probable result but for the defendant’s negligent conduct: Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12.

52. This case is an example of a delayed diagnosis claim failing on the counterfactual: see also Alrifai v ACT [2024] ACTCA 13. The plaintiff could not adduce evidence sufficient to prove that timely diagnosis would have prevented the clinical worsening relied upon. The situation here is a fortiori because there is no evidence before the Court of a clinical worsening consequent upon a delayed diagnosis (of around four months).

53. Williams v Fraser [2022] NSWCA 200 concerned a failure to diagnose a congenital pars defect also known as dysplastic spondylolysis, which is an anatomical defect of the lower spine. On 24 May 2012, an x-ray of the patient’s spine was taken. The radiologist who examined the x-ray failed to identify or report the pars defect, as did the patient’s orthopaedic surgeon. The patient subsequently had surgery (with a different orthopaedic surgeon). The patient sued the radiologist for failing to identify the pars defect, which was alleged to have caused the patient to undergo the 2013 surgery, which in turn caused her chronic pain syndrome. The radiologist admitted breach of duty. Despite this, in applying s 5D(1) of the CLA, the Court determined that because the patient had not led probative evidence as to what conservative management (following a timely diagnosis) would have achieved, or how it would have altered the natural progression of her condition, her case could not succeed.

54. This reinforces that a plaintiff must adduce probative counterfactual evidence demonstrating that a timely diagnosis would more probably than not have produced a different clinical outcome. The generic claim that early identification might have made a difference is insufficient. Mr Williams has adduced evidence of neither.

55. Mr Williams’ evidence is focused on the question of breach but does not grapple with the evidential burden of establishing, on a counterfactual basis, how a delayed diagnosis of syphilis by the Defendants has clinically worsened his position. Without such evidence, no prima facie case exists.

Conclusion

56. For the reasons given above, judgment must be entered for the Defendants. There is no reason why costs ought not follow the event. However, the orders will provide for an application for an alternative costs order.

57. Accordingly, the Court orders:

58. Judgment for the Third and Fourth Defendants pursuant to r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW).

59. The Plaintiff pay the Third and Fourth Defendants’ costs.

60. If any party wishes to apply to vary Order 2 above, he is to notify my chambers of such intention within 7 days so that a timetable may be established to determine the application on the papers.

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