Austen v Tran

[2023] ACTCA 44

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Austen v Tran

Citation: 

[2023] ACTCA 44

Hearing Date: 

23 February 2023

Decision Date: 

29 November 2023

Before:

McCallum CJ, Wheelahan J and Crowe AJ

Decision: 

The appeal is dismissed. 

Catchwords: 

APPEAL – CIVIL LAW – Medical negligence – where appellant had brought a claim in medical negligence against general practitioner for delay in the diagnosis of non-Hodgkin’s lymphoma – where appellant had claimed before primary judge that breach of duty constituted by general practitioner ordering only blood tests and no follow-up appointment where she claimed severe leg pain – where primary judge found no breach of duty and alternatively causation not established – where on appeal appellant claimed that primary judge erred in failing to find general practitioner had breached duty at first consultation – where appellant further claimed primary judge erred by failing to consider the matters in s 43(2)(a) and (b) of the Civil Law (Wrongs) Act 2002 (ACT) – where primary judge had the benefit of hearing evidence – no error in failing to find breach of duty – no failure to consider s 43(2)(a) and (b) of the Act – rejection of appellant’s grounds of appeal regarding primary judge’s findings dispositive of appeal – unnecessary to address grounds directed to primary judge’s findings as to causation – appeal dismissed

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44

Cases Cited: 

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420

Austen v Tran [2022] ACTSC 114

Boensch v Pascoe [2019] HCA 49; 268 CLR 593

Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233

DL v The Queen [2018] HCA 26; 266 CLR 1

Griffiths v Kerkmeyer (1977) 139 CLR 161

Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1

Lee v Lee [2019] HCA 28; 266 CLR 129

Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550

Rogers v Whittaker (1992) 175 CLR 479

Rosenberg v Percival [2001] HCA 18; 205 CLR 434

Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871

Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51

Tame v New South Wales [2002] HCA 35; 211 CLR 317

Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320; 91 NSWLR 752

Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402

Whisprun Pty Ltd v Dixon [2003] HCA 48; 234 CLR 492

Wyong Shire Council v Shirt (1980) 146 CLR 40

Texts Cited:

Commonwealth of Australia, Review of the Law of Negligence (Final Report, 30 September 2002)

Parties: 

Sandra Austen ( Appellant)

Tuan Quoc Tran ( Respondent)

Representation: 

Counsel

D Toomey SC with D Richards OAM ( Appellant)

A Muller ( Respondent)

Solicitors

Maliganis Edwards Johnson ( Appellant)

MinterEllison ( Respondent)

File Number:

ACTCA 30 of 2022

Decision under appeal: 

Court:    ACT Supreme Court

Before:  McWilliam AJ

Date of Decision:       24 May 2022

Case Title:                  Austen v Tran

Citation: [2022] ACTSC 114

Court File Number:     SC 284 of 2020

THE COURT:

Introduction

1․On 19 September 2017, Ms Sandra Austen, to whom we will refer as the plaintiff, was diagnosed with non-Hodgkin’s lymphoma.  After a period of remission, her prognosis became terminal, and sadly, after this appeal was heard but before judgment could be given, Ms Austen passed away. 

2․The respondent, to whom we will refer as the defendant, is a general practitioner whom the plaintiff consulted on 17 October 2016 complaining of leg pain.  The plaintiff brought a proceeding claiming that the defendant was negligent in the conduct of his examination of her, and in his failure to follow up with her in order to arrive at a diagnosis of the cause of her leg pain.  The plaintiff alleged that had the defendant not failed to pursue a reasonable course of examination and investigation, her non-Hodgkin’s lymphoma would have been diagnosed earlier than it was, with the result that it would have been treated to the point that she would be in remission, if not cured.

3․The trial took place over six days in March and May 2021.  On 24 May 2022, the judge gave judgment for the defendant, holding that the defendant did not breach his duty of care to the plaintiff, and alternatively that if there had been a breach, the plaintiff had not established that any negligence of the defendant was a necessary cause of the plaintiff’s terminal prognosis: Austen v Tran [2022] ACTSC 114 (J).

Summary of the primary judge’s findings

Factual background

4․During the period October 2016 to September 2017 the plaintiff consulted the defendant, together with other medical practitioners, on several occasions in relation to a number of ailments.  In the proceeding below, the plaintiff alleged that the defendant had been negligent in his investigation and diagnosis of the causes of pain with which the plaintiff presented on two occasions: the first on 17 October 2016, and the second on 15 July 2017.  On appeal, the plaintiff’s case was confined to the claim that the cause of her damage was the defendant’s failure to take reasonable care in relation to the consultation on 17 October 2016.

The consultation on 17 October 2016

5․The plaintiff saw the defendant on 17 October 2016 at the Wattle Street Medical Practice (the Practice) in relation to leg pain that she had been experiencing.  Although it had been some years since the plaintiff saw the defendant, the plaintiff was known to the defendant and to the Practice.  The judge held at J[142] that the defendant knew or ought to have known that the plaintiff had long-term mental health issues and was a long-term recipient of a disability pension.

6․When the plaintiff saw the defendant on 17 October 2016, she presented with left leg pain which was interfering with her ability to walk.  The defendant’s clinical notes recorded the plaintiff reporting pain for eight days.  However, her Honour found that the plaintiff had been experiencing a degree of pain in her left leg for months, about which she told the defendant at the consultation, and that the plaintiff informed the defendant that her pain was 8/10 in severity.  The judge found that what brought the plaintiff to see the defendant was an escalation in her left leg pain, which had been worsening for more than a week: J[30]. 

7․The judge found that the defendant’s clinical notes had mistakenly referred to the plaintiff’s pain as being in her right leg: J[15].  However, her Honour held that whether the pain was in the left or right leg was not material to the course taken by the defendant at the consultation: J[21].

8․The defendant gave evidence that although he recorded the plaintiff as reporting 8/10 pain in his clinical notes, his impression was that the plaintiff’s pain was really only 4/10, which was reflected in the mild level of medication that he prescribed.  The defendant stated that if he had accepted the plaintiff’s estimation of her pain level, he would have prescribed additional pain relief medication or otherwise escalated the matter.  In cross-examination, the defendant said that if he had formed the view that the pain was indeed 8/10 for eight days, as the plaintiff had reported, he would have sent the plaintiff to hospital straight away in order to see an orthopaedic surgeon.  The judge at J[26] considered that there was a degree of reconstruction and speculation in this evidence.  Her Honour accepted that the plaintiff had reported 8/10 pain, but found that after examination the defendant formed the view that the plaintiff was in moderate pain.  This was an important finding, and there was no challenge to this finding on appeal.

9․The defendant ordered that blood tests be undertaken on the basis that there were differential diagnoses of a muscle injury or a possible iron deficiency.  The defendant gave evidence that the blood tests were ordered as he made a differential diagnosis, which he thought might be an iron deficiency.  The blood tests were intended to rule out anaemia arising from iron deficiency, inflammatory processes, and muscle tissue damage as causes of the plaintiff’s pain.  In this respect, we note that in evidence the defendant referred to the fact that he had ordered blood tests that included testing for iron, and for “CK”, which he explained to be a reference to creatine kinase, “an enzyme for muscle damage”.  The defendant also prescribed Anaprox for the plaintiff, which was an anti-inflammatory medication that was also capable of providing mid-level pain relief.  The plaintiff’s evidence was that Anaprox worked initially to relieve the pain, but after about two weeks it had little to no effect in relieving the pain.

10․There was an issue as to whether the defendant advised the plaintiff at the consultation on 17 October 2016 that she should return if the pain in her leg did not improve.  The plaintiff was adamant that she was not advised to return.  There was no record in the defendant’s clinical notes that he advised the plaintiff to return, but the defendant in his verified answers to interrogatories that were tendered at trial by counsel for the plaintiff stated that, based upon his usual practice, he would have given advice to the plaintiff that she should return in one week if her pain had not subsided.  The defendant also stated in cross-examination that after the consultation he said to the plaintiff that she should come back if the pain was not better.  The judge did not make a finding that the defendant gave advice to the plaintiff to return if the leg pain did not improve, instead finding at J[32]:

At best, if mention was made of a return visit, the evidence of the defendant suggests that the words were more in the nature of a throw-away line at the end of the consultation, rather than advice by the defendant to the plaintiff about the appropriate treatment strategy, including using time as a diagnostic tool to work out what was going on.  For example, it was not the evidence of the defendant that he ever explained to the plaintiff that if the blood tests did not reveal the cause of the pain and the pain was still present after a specified period of time, he would like to see her again to move to the next step of x-rays.

The blood test results on 18 October 2016

11․On 18 October 2016, the Practice received the results of the plaintiff’s blood tests which indicated a normal range for iron levels.  The plaintiff attended the Practice that day in person and recalled the receptionist telling her that her test results were “all good”.  At the time the plaintiff received the results of the blood tests, no one at the Practice requested that she make a further appointment, and the defendant did not thereafter call the plaintiff or refer her for any further investigations. 

Other consultations

12․Between October 2016 and May 2017, the plaintiff presented on several occasions to other medical practitioners at the Practice and also at another medical clinic in relation to other ailments and conditions.  There was no reference in the medical records of the plaintiff complaining of leg or back pain on these occasions.  In particular, on 27 October 2016 the plaintiff attended the Dickson Health Centre with a sore throat and nasal congestion.  On 13 December 2016, the plaintiff attended Dr Dutta at the Practice complaining of neck pain.  On 13 January 2017, the plaintiff attended Dr Ferguson at the Practice and was prescribed medication for asthma and other medications in preparation for an upcoming cruise.  We note that the plaintiff gave evidence that she informed Dr Ferguson about her back and leg pain on this occasion.  On 30 March 2017, the plaintiff attended Dr Jazwari at the Practice complaining of ear pain and other ailments including incontinence.  The plaintiff gave evidence that on this occasion she informed Dr Jazwari of back pain that she was experiencing.  On 9 May 2017, the plaintiff attended the Dickson Health Centre complaining of a sore throat and painful sinuses.

13․On 19 June 2017, the plaintiff attended the Practice and saw Dr Jazwari.  On that occasion she reported left foot/leg pain for the previous three nights.  Dr Jazwari’s provisional diagnosis was nerve root compression, or a disc prolapse, and the plaintiff was referred for a CT scan of the lumbar spine, which occurred on 21 June 2017.  The plaintiff also underwent blood tests which showed some abnormalities, with an elevated alkaline phosphatase and elevated C-reactive protein.

14․The plaintiff consulted the defendant on 15 July 2017 in relation to worsening lower back and left leg pain, as well as unexplained weight loss, lethargy, and incontinence.  On that occasion, the defendant made a provisional diagnosis of arthritis and prescribed the plaintiff the anti-inflammatory medication Anaprox and requested x-rays of the plaintiff’s left hip and knee, and an ultrasound of the plaintiff’s left gluteus muscles.

15․The x-rays and ultrasound were not carried out until 8 and 9 August 2017.  The radiologist stated in a report dated 9 August 2017:

1.An essentially unremarkable plain x-ray examination of the knees and left hip.

2.Possible abnormality of the left sacroiliac joint.  Further evaluation with plain x-rays dedicated to the sacroiliac joints is suggested as today’s examination does not include this.

3.An essentially normal ultrasound of the left hip including the left buttock and the tendon attachment sites of the AIIS and ASIS. 

4.View the distribution of pain, the possibility of sciatica should be considered.  If plain x-rays of the sacroiliac joints are unremarkable, consideration could be made performing either CT of MRI of the lumbosacral spine.

Subsequent treatment leading to diagnosis

16․On 21 August 2017, the plaintiff saw Dr Jazwari at the Practice where the results of the x-rays were reviewed and she was referred to an orthopaedic specialist for an MRI scan of the lumbar spine. 

17․The MRI scan was carried out on 1 September 2017, and the report identified a strong suspicion of metastatic disease, with multiple bony metastases involving the lumbopelvic skeleton and the pelvic lymph nodes.

18․On 4 September 2017, Dr Jazwari discussed the MRI results with the plaintiff and ordered further scans.  The plaintiff subsequently underwent a CT scan of the neck, chest, abdomen, and pelvis, a mammogram of both breasts, and a whole-body bone scan.  The results of those scans were recorded by Dr Jazwari on 7 September 2017 as being consistent with osteoblastic skeletal metastases. 

19․On 11 September 2017, Dr Jazwari referred the plaintiff to Dr Choi at Canberra Hospital Medical Oncology, who confirmed the diagnosis of osteoblastic skeletal metastases involving the sacrum, right ilium, and probably neck of the left femur.  Biopsies performed on 13 and 19 September 2017 confirmed the diagnosis of non-Hodgkin’s lymphoma.

The plaintiff’s chemotherapy

20․The plaintiff commenced chemotherapy, which occurred from November 2017 through to February 2018.  She was declared to be in remission in May 2018.

21․On 10 July 2019, a CT scan that was performed suggested a recurrence of the plaintiff’s lymphoma.  This was confirmed by a PET scan on 25 July 2019, and a CT guided biopsy on 9 August 2019, which indicated a relapsed diffuse large B-cell lymphoma.  The plaintiff commenced a second round of chemotherapy in around late August or early September 2019, completing that round of treatment in November 2019.

22․On 12 December 2019, the plaintiff had an autologous stem cell transplant.  After that time, the plaintiff continued in the care of the Canberra Hospital Oncology Unit.  At the time of the hearing of the trial of the proceeding, the plaintiff had been participating in a treatment trial at St Vincent’s Hospital in Sydney, and the outcome of the most recent therapy had yet to be determined.  As we mentioned at the outset, after the hearing of the appeal the plaintiff passed away.

Findings as to negligence

23․The plaintiff’s claim was that in and following the consultation on 17 October 2016, the defendant should have investigated her symptoms more thoroughly, including through follow-up and referrals, to achieve a diagnosis: J[77].  The plaintiff claimed that such steps should have included “taking an adequate history, recording the history and the plaintiff’s symptoms correctly in the clinical notes, and conducting an appropriate physical examination during the consultation, again with an adequate record of what was done”.  The plaintiff claimed that if a diagnosis could not be made, then it was incumbent upon the defendant to organise a follow-up appointment or to refer the plaintiff for further investigations so that she would not be left without any diagnosis for what was significant pain in her left leg.  The plaintiff’s case was that had these steps been undertaken, then her non-Hodgkin’s lymphoma would have been diagnosed earlier, and resulted in earlier treatment.

24․The judge at J[69] set out s 43 of the Civil Law (Wrongs) Act 2002 (ACT), and stated that it must be applied to determine whether there was a breach in a particular case. For the purposes of her analysis, the judge at J[71]-[73] framed the risk of injury as being the risk of lymphoma and its progression if undetected –

71.Central to applying s 43 is the identification of the “risk of harm”. Only once the risk of harm is known can one assess what a reasonable response to the risk would be: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [59] per Gummow J.

72.Here, the risk of harm identified was the risk of a delay in diagnosis and subsequent worsening of the plaintiff’s non-Hodgkin’s lymphoma.  The risk of harm arising from a delay in diagnosis was that the lymphoma (which may have been curable) would be left untreated and develop to a point where it was terminal for the plaintiff. 

73.There was no dispute that the risk of lymphoma and its progression if undetected, including an increase in size of the Plaintiff’s osteoblastic skeletal metastases, was a foreseeable risk within the meaning of s 43(1)(a) of the CLW Act.

25․Her Honour also held at J[75] that the risk was “not insignificant”, thereby engaging s 43(1)(b) of the Act.

26․The judge was not satisfied that the defendant had breached his duty to the plaintiff to exercise reasonable care.  The judge accepted that the defendant did not investigate the plaintiff’s symptoms and complaints as fully as what ought to have occurred, but held that the consultation as a whole and the circumstances that existed at that time should be viewed together to determine whether an individual failure was also sufficient to establish a breach of duty of care: J[92].

27․The judge referred to expert evidence that had been given by Associate Professor Peter Clyne, who had been called by counsel for the plaintiff, and Dr Elizabeth Marles, who had been called by counsel for the defendant.  Her Honour accepted their evidence that the defendant’s clinical notes in their detail did not meet the standard of a reasonably skilled general practitioner.  However, her Honour did not consider that the lack of reasonably detailed notes affected the outcome of the first consultation in terms of examination, treatment, or advice.

28․In relation to the defendant’s examination of the plaintiff, the judge held that the defendant conducted at least a basic examination that was sufficient to inform the defendant that whatever was causing the plaintiff’s pain did not require immediate hospitalisation or treatment, and otherwise that some form of further testing would be required in order to understand more about what was going on: J[117]-[119]. The judge held that although in isolation the examination was not as thorough as it could have been, when considered as one part of a number of other steps being taken by the defendant, the examination was not so poor as to fall below the standard of care of a reasonable general practitioner.

29․In relation to diagnosis, the judge noted at J[120]-[121] that the expert evidence did not indicate that the defendant, acting reasonably, would or should have contemplated non-Hodgkin’s lymphoma as a potential diagnosis at the first consultation, even with a more thorough examination, and held that a differential diagnosis which did not include non-Hodgkin’s lymphoma as a condition to investigate immediately at that point was reasonable.

30․The judge found at J[123] that there was plainly more that could have been done in addition to blood tests to investigate the pain in the plaintiff’s leg.  The defendant did not order x-rays or make further referrals, and in that sense, the defendant did not fully investigate the symptoms and complaints of the plaintiff at the first consultation.  Nonetheless, the expert evidence did not suggest that ordering blood tests was an inappropriate first step.  The judge framed the issue as whether the defendant should have gone further based on what the reasonably skilled general practitioner would have done in the circumstances.  The judge accepted that it was not unreasonable for the defendant to adopt a staggered approach to working out the cause of the plaintiff’s pain at the first consultation, and that in the absence of an indication of trauma, reasonable care did not require the defendant to order x-rays, and held that ordering an MRI scan of the lumbar spine would have been a “leap”: J[125].  We note that the defendant gave evidence that as a general practitioner he could not request an MRI scan of the lumbar spine that would attract a Medicare rebate.  Her Honour also held that in the absence of x-rays the basis for a referral to a specialist did not then exist: J[126]. 

31․In relation to the plaintiff’s position after the blood test results had been received, and which showed no iron deficiency, the judge held that at that point the plaintiff was left without a diagnosis and without advice as to any course of action to take other than to take the medication which had been prescribed. The defendant’s evidence was that he relied on the plaintiff to be proactive and to ask for another consultation if her pain continued, although both experts noted that a reasonably skilled general practitioner would be expected to form an initial diagnosis and corresponding strategy or plan, including some form of follow-up action: J[129]-[131]. However, her Honour noted the burden for doctors to call individual patients when regard is had to the volume of patients passing through the Practice and requiring blood tests: J[130].

32․The judge found at J[132]-[136] that the defendant did not follow best practice because he did not fully investigate the plaintiff’s symptoms and complaints, and he did not ensure that the plaintiff understood the purpose of the blood tests or that the improvement or worsening of the pain could shed light on the possible causes.  Her Honour identified steps that the defendant could have taken, being: (1) he could have booked the plaintiff in for a further appointment in two weeks, to be cancelled if the blood tests showed nothing and the pain had resolved; (2) he could have made it clear to the plaintiff at the first consultation that part of the treatment strategy relied upon her taking responsibility to return if the pain was still present, even if the blood tests were normal; and (3) if time was being used as part of a stepped approach to diagnosis, it would also have been prudent to record that such advice had been given for the benefit of any future provider of treatment at the Practice.  Steps of this character were described in the expert evidence and by her Honour as a “safety net”.  Her Honour held that these steps were not burdensome, in terms of cost or time, citing the Civil Law (Wrongs) Act, s 43(2)(c). Her Honour held that failure to take these steps left the plaintiff unaware of the significance of normal blood test results and the need to investigate further the pain when it did not subside. The judge stated that the plaintiff was left without a diagnosis and a plan when the strategy intended by the defendant was that normal blood test results were not the end of his investigations, but rather a gateway to pursuing other investigations, such as x-rays, if the plaintiff’s pain continued.

33․However, the judge found that the defendant did not breach his duty to take reasonable care having regard to the circumstances existing at the time.  Her Honour referred at J[138] to the variety of causes of leg pain, and to Dr Marles’ evidence that it was appropriate for a general practitioner not to recall a patient if the complaint was of experiencing short-term leg pain, because the vast majority of musculoskeletal pain will get better on its own.  In circumstances where it was uncontroversial between the experts that leg pain may resolve on its own, even pain that had occurred for a number of months, the judge concluded at J[139] that a reasonable general practitioner was, “entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted at a level above that of a minor irritation, even if not proactively spelling it out for the patient”.

34․The judge held that it was reasonable to assume that the plaintiff would attend a medical practitioner again if pain persisted, and taking account of the plaintiff’s socio-economic factors her Honour was not convinced that the defendant, knowing of those factors, and acting with reasonable competence, ought to have been more proactive.  The basis for the entitlement to make that assumption in this case was that the plaintiff had been moved to attend a general practitioner in the first place because of her significant or extreme leg pain, and it was reasonable to assume that she would do so again if the pain persisted.  We set out below J[138]-[143] which contain her Honour’s central path of reasoning in relation to the question of breach, because it is important –

138.However, the question is whether what the defendant did in the circumstances faced at the time was less than what would be expected of a reasonable general practitioner.  Given the variety of causes of leg pain, I think some significance must be given to Dr Marles’ evidence that it was appropriate for a general practitioner not to recall a patient if their complaint is short term pain, as the vast majority of musculoskeletal pain will get better on its own.

139.In circumstances where it was uncontroversial as between the experts that leg pain may get better on its own, even pain that had occurred for a number of months, in my view, the reasonable general practitioner was entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted at a level above that of a minor irritation, even if not proactively spelling it out for the patient.

140.The basis for the entitlement to make that assumption in this case is that the plaintiff had been moved to attend a general practitioner in the first place because of her significant or extreme leg pain.  It is therefore reasonable to assume that she would do so again if the pain persisted.

141.The experts’ view (which I accept) was that the individual circumstances of a patient was a matter relevant to the course that a general practitioner might take.  I have therefore given consideration to whether the defendant ought to have been alert to particular vulnerabilities stemming from socio-economic factors, culture or education, as being circumstances that may have modified the precautions a reasonable general practitioner would have taken to guard against the risk identified above. 

142.In this case, the plaintiff was an Indigenous woman in her early fifties, was in poor mental health, had limited education, and had been on a disability pension for many years.  These were all matters of which the defendant either knew or ought to have been aware from the history of attendances at the Practice. 

143.Ultimately though, I am just not convinced that the defendant acting with reasonable competence ought to have been more proactive, even knowing those factors.  Following that first consultation, I remain unpersuaded that a reasonable general practitioner would not have first relied in some way on seeing whether the pain dissipated over time with pain relief to manage the symptom in the meantime, and the plaintiff then re-presenting – either at the Practice or elsewhere in the system (being the defendant’s thinking) – if her pain had not resolved.  The position may have been different if the defendant had seen the plaintiff on a previous occasion and knew the pain relief prescribed was still necessary or had been ineffective, but that is not this case.

Findings as to causation

35․Although the judge held that no breach of duty was established, upon the hypothesis that breach had been established, her Honour considered whether the defendant’s conduct was a necessary condition of the harm alleged, namely the delay in diagnosis and subsequent worsening of the plaintiff’s non-Hodgkin’s lymphoma. 

36․On the question of causation, one of the issues that arose on the expert evidence was when the plaintiff’s condition would have become detectable. Professor Richard Fox, a haematologist and oncologist who was called for the plaintiff, stated that the lymphoma, the development of which was causing the discomfort at the time of the first consultation, would have been diagnosable on a PET scan in October 2016, which would have been made in two or three weeks after the first consultation if reasonable precautions and processes were taken: J[168]-[174]. However, Dr Jonathan Page, an oncologist who was called for the defendant, concluded that the lymphoma-related symptoms would likely only have been present around the time of the second consultation with the defendant in July-August 2017, and further that there was no indication of the constant and increasing pain symptomatic of lymphoma at the time of the first consultation, and that the pain at this time would have been likely unrelated to the lymphoma.

37․There was also an issue on the expert evidence about the development of the plaintiff’s lymphoma.  Professor Fox stated that the low-grade lymphoma, which had been progressing for about 12 months, transformed to high grade in July 2017, whereas Dr Page stated there was no low-grade lymphoma on the first PET scan in 2019, only high grade, indicating the lymphoma developed rapidly as high grade in only the few months between June to September 2017.

38․The judge found at J[182] that the opinions of both Professor Fox and Dr Page in relation to whether there was likely to be low-grade lymphoma at the time of the first consultation were both reasonable.  After considering the evidence, in particular the circumstantial evidence, the judge found at J[190] that the plaintiff had low grade lymphoma from at least October 2016, and that it became high grade lymphoma from shortly before 2017.  Primarily that was because there was no alternative to explain the leg pain which was present at the first consultation, and although the pain was experienced at different levels over the ensuing period, it never went away.

39․Proceeding on this basis, the judge held that the lymphoma could have been detected by a PET scan at the early stage of the first consultation, but held that it was unlikely that the plaintiff would have been referred for a PET scan at a point earlier than when the disease escalated in June and July 2017: J[191]-[195]. This conclusion was supported by findings that the pain relief that was prescribed had been effective, and that the plaintiff presented to the Practice twice between the first and second consultations with the defendant without raising the leg pain. As such, upon the hypothesis that there had been a breach by the defendant in relation to the first consultation, her Honour found that the evidence did not establish that the breach caused a delay in diagnosis at the time: J[198].

Assessment of damages

40․For completeness, her Honour also provisionally assessed damages on the assumptions that breach and causation had been established.  The heads of damage that were assessed were: (1) general damages for pain and suffering; (2) Griffiths v Kerkmeyer (1977) 139 CLR 161 damages for gratuitous care and assistance; and (3) past and future special damages for the cost of medical treatment. There was no other claim for damages for economic loss. For general damages, her Honour assessed these as if the plaintiff had a life expectancy of 5 years (reduced from 26 years at the date of judgment). Were a breach to be established which demonstrated that, but for the breach, the plaintiff would have been cured of lymphoma, the damages awarded would have been $300,000. Were the breach established in the first consultation which but for the breach, the plaintiff would have led to a longer period in remission, the damages awarded would have been $80,000. Were the breach established at the second consultation which would have meant only weeks of delay, damages awarded would have been $40,000. In relation to interest, her Honour noted the compliance with practice to apportion 50% to the past and 50% to the future and award interest at 2% on the past component. For treatment expenses, her Honour would have awarded $115,000 for past treatment and $80,000 for future expenses. Damages for domestic assistance were assessed as $99,900 and $120,087 for past and future lost assistance respectively.

The grounds of appeal

41․The plaintiff appealed the orders of the judge that judgment be entered for the defendant with costs.  The grounds of appeal concern two topics: errors in findings relating to the first consultation on 17 October 2016; and errors in findings relating to causation. 

The first consultation on 17 October 2016

42․The plaintiff claimed that the judge erred in failing to find that the defendant breached his duty of care to the plaintiff at the first consultation by providing medical treatment and medical advice to the plaintiff below that expected of a reasonable general medical practitioner.  By the notice of appeal, the plaintiff particularised the findings that she claimed should have been made, namely that the defendant breached his duty of care by failing:

(a)immediately to refer the plaintiff to the Canberra Hospital or Calvary Hospital for further investigation;

(b)immediately to refer the plaintiff to a specialist in order to diagnose the cause of appellant’s symptoms;

(c)to accept the plaintiff’s complaints of the level of her pain;

(d)properly to examine the plaintiff;

(e)to take and or record a proper history of the plaintiff’s symptoms;

(f)to explain to the plaintiff the potential seriousness of the plaintiff’s symptoms;

(g)to explain to the plaintiff that if the pain persisted, she should return to him for further investigation; and

(h)after receiving the negative results of the blood tests on 18 October 2016, to implement a plan in order to diagnose the cause of the plaintiff’s symptoms.

43․Further, by an amendment made to the notice of appeal with leave given at the hearing, the plaintiff claimed that the judge erred in failing to consider in her assessment of breach of duty, those matters she was required to consider by s 43(2) of the Civil Law (Wrongs) Act , specifically:

(a)the probability that the harm would happen if precautions were not taken; and

(b)the likely seriousness of the harm, were it to materialise. 

Causation

44․There were four sub-grounds of appeal in relation to causation, by which the plaintiff claimed that the judge erred:

(a)by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan undertaken in 2016 at Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time if treated, would have led to a complete remission and cure of the plaintiff’s lymphoma;

(b)by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan ordered by a specialist in 2016, after a referral from the defendant, would have identified the plaintiff’s lymphoma, which at that time if treated, would have led to complete remission and cure of the plaintiff’s lymphoma;

(c)by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan or an MRI scan undertaken early in 2017 at the Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time if treated would have led to complete remission and cure; and

(d)by finding that the plaintiff had not proved causation when the evidence supported a finding that a PET scan or an MRI scan undertaken in about mid 2017 at Canberra Hospital or Calvary Hospital would have identified the plaintiff’s lymphoma, which at that time, if treated would have led to an additional 12 months of remission of the plaintiff’s lymphoma.

The notice of contention

45․The defendant filed a notice of contention.  There were six findings of the judge which the defendant challenged, namely –

1.That during the consultation of 17 October 2016, the [plaintiff]:

a.reported that she had pain in her left leg which had been present for a period of months, and that it had worsened over the week preceding the consultation (at [30]) (contention 1);

b.may have been told by the [defendant] to return if pain persisted (at [32]) (contention 2);

c.if the [plaintiff] was told by the [defendant] to return if pain persisted, that such instruction was not in the nature of medical advice (at [32]) (contention 3).

2.That as and from 17 October 2016:

a.the [plaintiff] experienced ongoing pain until the date of diagnosis (at [187] to [190]) (contention 4); and

b.that any symptoms of pain which were experienced, were symptoms caused by a lymphoma (at [190]) (contention 5).

3.That at the time of the consultation of 17 October 2016, the [plaintiff] suffered from low grade lymphoma (at [190]) (contention 6).

46․The defendant contended that the evidence or the weight of the evidence supported the following findings that corresponded to its contentions of error by the judge –

4.In respect of contentions 1, 2 and 3: That during the consultation of 17 October 2016, the [plaintiff]:

a.reported pain in her right leg which had been present for a period of 8 days;

b.was advised by the respondent to return for further investigations in the event that the left leg pain did not recover;

c.that such advice was in the nature of medical advice, being given by the respondent as part of a treatment plan.

5.     In respect of contentions 4 and 5: That as and from 17 October 2016:

a.the appellant did not experience ongoing left leg or back pain; or

b.in the alternative to contention 1, any ongoing right leg or back pain; and

c.to the extent that there was ongoing pain symptoms, those symptoms were not the result of a lymphoma.

6.In respect of contention 6: That as at 17 October 2016 the appellant did not suffer from low grade lymphoma.

47․It must be said that having regard to the advantages that the judge enjoyed in seeing the witnesses give evidence, and the consequential restraints on appellate review, these contentions were ambitious.  In the event, for reasons that follow, it is unnecessary to consider the contentions.

Consideration of the issues argued on appeal

48․In relation to the question of breach of duty, the submissions of counsel for the plaintiff addressed three points: (1) whether the judge erred in failing to act on what was said to be an admission by the defendant that he would have sent the plaintiff to hospital straight away had he thought that the plaintiff’s pain was severe; (2) that the judge had erred in failing to find that the defendant breached his duty of care by failing to implement a strategy plan for the plaintiff; and (3) that the judge had failed to address the matters specified by s 43(2) of the Civil Law (Wrongs) Act that were the subject of the amendments to the notice of appeal.

49․In written submissions filed on behalf of the plaintiff it was submitted that an important part of the plaintiff’s case was that the judge did not take into account what was said to be an admission made by the defendant, that if the plaintiff was suffering leg pain at a level of 8/10 on 17 October 2016, he would have sent the plaintiff to the Emergency Department of a Hospital “straight away”: see [8] above.  It was submitted that the judge, having found that the plaintiff did report to the defendant that she suffered leg pain at a level of 8/10 for the past week, failed to consider, or make any findings, in relation to what was said to be an admission by the defendant.  This submission was developed to include a submission that if the defendant had referred the plaintiff to a hospital on 17 October 2016, then it was likely the hospital would have been the Canberra Hospital, which would have resulted in the plaintiff being seen and assessed by a specialist at the Hospital.

50․We do not accept the submissions that the judge did not take account of a claimed admission by the defendant.  Primarily, that is because we do not accept that the defendant’s evidence about referring the plaintiff to a hospital straight away was an admission in the way argued on behalf of the plaintiff.  Rather, the defendant’s evidence in cross-examination that he might have sent the plaintiff to hospital straight away was given as part of his explanation as to why he did not accept that the plaintiff was suffering 8/10 pain as he had recorded in his notes.  The judge considered that there was a degree of reconstruction in this explanation, but ultimately accepted at J[26] that the defendant formed the view that the plaintiff was suffering moderate pain.  By the amended notice of appeal, there was no challenge to this finding, which was a product of the benefit that the judge enjoyed of seeing the defendant give evidence.  Nor, consistently with the amended notice of appeal, did counsel for the plaintiff on appeal develop a submission that the judge’s findings at J[26] were wrong.  An essential premise for the plaintiff’s argument is therefore not established. 

51․There was another aspect of the submissions of the plaintiff on appeal that we need address only briefly.  Counsel relied on the judge’s acceptance of the plaintiff’s evidence about the severity of the pain that she had experienced as supporting the argument that the judge was in error in failing to act on the claimed admission by the defendant that he should have sent the plaintiff to hospital.  However, this submission does not engage with the judge’s findings as to what level of pain the defendant had assessed the plaintiff as experiencing.  As we have said, there was no challenge on appeal to the judge’s finding that the defendant assessed the plaintiff as experiencing moderate pain.

52․Further, we do not consider that the argument underlying the plaintiff’s first point on appeal was fairly raised at trial: see, Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 at [51] (Gleeson CJ, McHugh and Gummow JJ). The so-called admission of the defendant on which the plaintiff relied on appeal was founded on evidence given by the defendant in cross-examination. The claimed failure by the defendant to send the plaintiff to a hospital straight away was not pleaded as a particular of negligence, was not the subject of expert evidence, was not the subject of the plaintiff’s written submissions at trial which were presented after evidence had closed, and was not raised by counsel for the plaintiff in final address.

53․In relation to the second issue going to breach of duty, counsel for the plaintiff relied on the judge’s findings in relation to the steps that were available to the defendant as a safety net to which we referred at [32] above. It was submitted that the judge’s findings constituted a finding of a breach of duty by reference to the reasoning in Rogers v Whittaker (1992) 175 CLR 479 at 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ), and also by reference to the standard of care provided for by s 42 of the Civil Law (Wrongs) Act.  It was submitted that upon making the findings that the defendant had failed to implement a strategy plan, the judge had erred in failing, on that basis, to find that the defendant had breached his duty to the plaintiff to exercise reasonable care.  Upon the hearing of the appeal, counsel for the plaintiff submitted that in all the circumstances, which included the plaintiff’s history of pain, the fact that she was an Indigenous woman in her early 50s who had poor mental health and limited education, it was incumbent upon the defendant to ensure that there was some follow-up.  Counsel submitted that in the context of normal blood test results, which had not excluded malignancy as one of the possible causes of pain, it was not adequate to rely upon someone of the plaintiff’s circumstances to return for a follow-up consultation.

54․It was further submitted that the judge had failed to provide reasons in relation to why the failure to implement a strategy plan did not amount to a failure to exercise reasonable care.

55․We do not accept the submissions advanced in relation to the second issue.  That is for three reasons.  The first is that the judge’s findings at J[132]-[136] in relation to the steps available to the defendant to manage the plaintiff were directed to best practice, and not to whether there was a material departure from the standard of reasonable care of a general practitioner in a busy practice in the circumstances that existed in this case.  That was explicitly recognised by the judge at J[138] where her Honour framed the relevant question as being whether what the defendant did in the circumstances faced at the time was less than what would be expected of a reasonable general practitioner. 

56․The second reason is that the judge’s findings took account of the plaintiff’s socio-economic circumstances, and placed some weight on the evidence given by the defendant, and particular weight on the expert evidence given by Dr Marles.  In cross-examination by counsel for the plaintiff in relation to reasonable practices of a general practitioner, Dr Marles stated –

Q:So in the facts of this particular case where there’s a record of 8 out of 10 for pain for eight days and Dr Tran orders blood tests and the very next day, the tests come back as negative, is your evidence that it wouldn’t be reasonable to ask the patient to come back again because you’ve excluded the diagnosis and you’re still looking for a diagnosis?

A:No, I don’t think you would ask the patient to come back.  I wouldn’t ask the patient to come back because I think what you’ve done is you’ve looked to see whether there were any pointers – any red flags or any pointers of systemic illness, anything that might suggest there was something bigger going on than a musculoskeletal pain.  There was nothing to suggest that and so I don’t think you would ask the patient to necessarily come back.  I think you would leave it up to the patient to see whether they thought they needed to come back because their pain wasn’t resolving or it was getting worse.

(Emphasis added.)

57․It is true, as counsel for the plaintiff submitted, that this evidence was in response to a question that was premised on a presentation of experiencing 8/10 pain for a period of eight days.  But in making her findings, the judge at J[139] took account of the fact that the pain had been experienced over a number of months in combination with the fact that it was uncontroversial that leg pain may get better on its own.

58․As for the defendant’s evidence, the judge referred at J[131] to the defendant’s evidence that he relied on the plaintiff to be proactive, and to ask for another consultation if her pain continued.  The defendant gave this evidence in response to some questions by the judge at the conclusion of the re-examination.  The defendant explained that if patients are not better they come back, then absent something sinister, it was not the defendant’s practice to call a patient who had presented with a symptom to ask whether the patient was better.  In the case of the plaintiff’s condition, the defendant stated that he was not looking at anything sinister that might have been causing the plaintiff’s pain, because he was looking at the muscle itself.  As we have mentioned, the judge held at J[132] that this did not accord with “best practice”, but her Honour correctly recognised that this was not the standard against which reasonable care was to be measured.

59․Associate Professor Clyne, who was called to give expert evidence on behalf of the plaintiff, gave different evidence, to which her Honour referred at J[102].  His evidence was that it was inappropriate practice to send a patient away undiagnosed after test results, and that a patient who had reported 8/10 pain needed to be seen.

60․What reasonable care required in the circumstances was a question for the judge: Rogers v Whitaker at 488-9 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ), approving the formulation in the dissenting speech of Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 at 876. In determining that question, the evidence of good medical practice was relevant. In this case, the judge was presented with differing medical opinions, and the evidence could be sifted and evaluated in different ways. Her Honour had the benefit of seeing and hearing the plaintiff, the defendant, Dr Marles, and Associate Professor Clyne give their evidence, and to form impressions about the weight to give to different aspects of that evidence. For our part, we have only the written record of the trial. While this is an appeal by way of re-hearing involving a “real review”, there is a burden on the appellant to demonstrate that the judge’s findings of fact were wrong. In determining whether there was error, account must be taken of the superior position of the trial judge in evaluating the oral evidence. In our view, it has not been demonstrated that the judge was wrong to decide the question of what reasonable care required by giving some significance to the oral evidence of Dr Marles given in cross-examination, and in resolving the issues in the way her Honour did. Acceptance of the plaintiff’s contention would result in an outcome similar to that which occurred in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [54]-[60], where the trial judge had the benefit of hearing the expert witnesses give their evidence, and the intermediate appellate court was held to have erred in reversing the relevant findings made at trial. See also, Lee v Lee [2019] HCA 28; 266 CLR 129 at [55] (Bell, Gageler, Nettle and Edelman JJ).

61․The third reason is that we do not accept the submission that the judge’s reasons on this issue were inadequate.  A judge has a duty to give adequate reasons for a decision, and a failure to do so can amount to appealable error.  The applicable principles were referred to in DL v The Queen [2018] HCA 26; 266 CLR 1 at [32] (Kiefel CJ, Keane and Edelman JJ). The submission that the judge failed to provide reasons in relation to why the defendant’s failure to implement a strategy plan on 17 October 2016 was not developed, and we do not accept it. Her Honour’s finding that the defendant did not breach his duty to take reasonable care was based upon a distinction which her Honour drew between best practice, and what reasonable care required having regard to the circumstances that existed at the time. In relation to the latter, the judge placed some significance of the expert opinion of Dr Marles to which her Honour referred, and one is not left wondering about her Honour’s path of reasoning.

62․This brings us to whether, as the plaintiff claimed on appeal, the judge erred in failing to consider in her assessment of breach of duty those matters that she was required to consider by s 43(2) of the Civil Law (Wrongs) Act. At J[69], the judge set out s 43, which provides –

43Precautions against risk—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 deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a)   the probability that the harm would happen if precautions 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 creating the risk of harm.

63․Paragraph 43(2)(c) is to be read with s 44, which at J[76], her Honour also set out –

44Precautions against risk—other principles

In a proceeding in relation 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 it 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 relation to the risk and is not of itself an admission of liability in relation to the risk.

64․Provisions such as s 43 of the Civil Law (Wrongs) Act were introduced in legislation by the States and Territories of Australia following the report of the panel chaired by the Hon Justice Ipp, Review of the Law of Negligence (Final Report, 30 September 2002). The types of considerations referred to in s 43 are familiar to common lawyers, because while the statutory provisions now prevail, s 43 recalls to a substantial degree the principles relating to breach of duty essayed in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 (Mason J). The mischief that the Ipp Panel identified and sought to address was that it was thought that the decision in Shirt was widely perceived to have created a situation in which lower courts might be in danger of ignoring that the probability of a risk, however high or low it may be, was only one element in determining the factual question of what reasonable care required. The Ipp Panel referred this consideration at [7.14] of its final report –

… a danger that Shirt may be used to justify a conclusion — on the basis that a foreseeable risk was not far-fetched or fanciful — that it was negligent not to take precautions to prevent the risk materialising, and to do this without giving due weight to the other elements of the negligence calculus.

65․See also the discussion by McHugh J in Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [98]-[102].

66․The reference by Mason J in Shirt to a risk that was not far-fetched or fanciful was directed to the foreseeability of a risk for the purposes of determining one necessary element of the legal question whether a duty of care was owed.  For that purpose, reasonable foreseeability within the scope of a duty of care is a generalised enquiry undertaken at a high level of abstraction.  In Shirt, the existence of the duty of care had been conceded: see the summary of the submissions of the appellant in Shirt at 42. 

67․If a duty of care is established, then the duty is always discharged by the exercise of reasonable care, which is a factual question: Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at [49]-[50] (Gummow J). At common law, what reasonable care requires directs attention to the type of factors identified by Mason J in Shirt, which include the magnitude of the risk.  The inquiry is a prospective inquiry, and it is in error to reason backwards by asking what reasonable steps would have prevented the risk of injury materialising, and holding a person liable in negligence because those steps were not taken: see, Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [16] (Gleeson CJ); Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126], [128], [160] (Hayne J); Roads and Traffic Authority (NSW) v Dederer at [18] (Gummow J). The same observation applies to the inquiry required by s 43 of the Civil Law (Wrongs) Act and corresponding provisions: Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [48] (French CJ, Gummow, Hayne, Crennan and Bell JJ).

68․The Ipp Panel proposed that the “formula laid down in Shirt” be modified by replacing the phrase “not far-fetched or fanciful” with a phrase indicating a risk that carries a higher probability of harm, favouring the phrase “not insignificant”. The result is s 43 of the Civil Law (Wrongs) Act and corresponding provisions which lay down a series of conditions and mandatory considerations for determining whether liability in negligence is established.  They are of the first importance in identifying the proper starting point: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [11] (French CJ, Gummow, Hayne, Heydon and Crennan JJ). Although s 43 appears in Part 4.2 of the Act titled “Duty of care”, the conditions and mandatory considerations in s 43 are directed to the breach question: Adeels Palace at [13]; see also, Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; 273 CLR 454 at [97]-[98] (Gordon, Edelman and Gleeson JJ). In relation to the magnitude of the risk, s 43(1)(b) provides for a threshold that the risk must have been “not insignificant”. Subject to this threshold, the mandatory considerations in s 43(2) are similar to the type of things that would be relevant under the formulation in Shirt, and under the principles referred to by Gummow J in Roads and Traffic Authority (NSW) v Dederer at [18] with which there are clear parallels: see, Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2; 15 ACTLR 233 at [27] (Burns and Loukas-Karlsson JJ, and Crowe AJ).

69․Counsel for the plaintiff submitted on the hearing of the appeal that it should be inferred that the judge did not turn her mind to the matters that she was required to take into account by s 43 of the Civil Law (Wrongs) Act.  Counsel cited Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129]-[130] (Hayne J), and in particular, the statement that, “because the judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”. Counsel submitted that the judge’s omission to mention either of the considerations in s 43(2)(a) or (b) meant that consideration was not given to them.

70․Counsel for the plaintiff submitted that, looking at the risk of harm to the plaintiff prospectively at the time of the consultation, the risk was that a malignancy would be undetected and would progress, describing the materialisation of such a risk, if it eventuated, as catastrophic. Counsel relied on the evidence of Dr Marles that a less common cause of leg pain was bone neoplasia, and on a concession made by counsel for the defendant at trial during final address that the risk of lymphoma was foreseeable. Counsel submitted that the judge addressed s 43(2)(c), to which her Honour referred to at J[136], but had not addressed s 43(2)(a) or (b). It was submitted that had her Honour given proper consideration to the matters that she was required to address by s 43(2)(a) and (b), and having regard to her Honour's observations that the arrangement of a follow-up was not burdensome in any way, then the correct result in this case in circumstances where the potential harm was extremely serious, should have been a finding of breach of duty.

71․In support of these submissions counsel referred to findings that the judge made, and other passages in the reasons for judgment –

(a)the finding at J[92] that that the defendant did not investigate the plaintiff’s symptoms and complaints as fully as what ought to have occurred (see [26] above);

(b)the recording of Dr Marles’ expert evidence at J[107]-[108] in relation to appropriate investigations at first instance as being by reference to a condition that had been present for eight days, and that it was appropriate for a general practitioner not to recall a patient if the complaint is of short-term pain, as the vast majority of musculoskeletal pain will get better on its own;

(c)the finding at J[113] that there was significant pain in the plaintiff’s left leg, that this had existed for more than one week, and that the defendant knew that there had been some pain for a number of months, but not the 8/10 level pain which was the immediate cause for the plaintiff attending the Practice on 17 October 2016;

(d)the finding at J[123] that there was plainly more that could have been done in addition to blood tests to investigate the pain in the plaintiff’s leg, and that the defendant did not fully investigate the symptoms and complaints of the plaintiff at the first consultation;

(e)the finding at J[128] that upon the plaintiff receiving the results of her blood tests she was left without a diagnosis and without advice as to any course of action to take other than the painkillers that had been prescribed;

(f)the finding at J[132] that the defendant did not follow best practice because he did not fully investigate the plaintiff’s symptoms (see [32] above); and

(g)the finding at J[32] that if the defendant did advise the plaintiff to return, it was only a throw-away line at the end of the consultation.

72․Counsel for the plaintiff submitted that, in circumstances where pain killers had been prescribed, reasonable care required the defendant to inform the plaintiff to return to the Practice upon the results of the blood tests being uneventful, and required that the defendant inform the plaintiff that the reason to return was that there could be a more sinister cause of the pain than what was being investigated and which needed to be ruled out.  Counsel submitted that the Court should infer that if that advice had been given, then the plaintiff would have returned to the Practice, particularly in circumstances where she perceived that she was suffering 8/10 pain.

73․We are not persuaded that the judge failed to take account of the matters that she was required to consider by s 43 of the Civil Law (Wrongs)Act. For one thing, the judge prefaced her consideration of whether the defendant’s duty of care was breached by setting out the entirety of s 43 at J[69]. This is not a situation, as was the case in Uniting Church in Australia Property Trust (NSW) v Miller;Miller v Lithgow City Council [2015] NSWCA 320; 91 NSWLR 752, where the trial judge, in finding that the appellant had been negligent, did not refer to the corresponding provisions in the New South Wales legislation other than the section concerning obvious risk, which is not relevant here.

74․As to the risk of harm, at trial the judge raised with counsel for the plaintiff during the course of opening that the pleading was very general, and of the need to address ss 42 and 43 of the Civil Law (Wrongs) Act and the risk of harm. There was no express articulation of the risk of harm in the plaintiff’s final written submissions to the judge. In closing addresses, the judge put to counsel for the defendant that the risk was cancer, or lymphoma, which counsel appeared to accept. The submissions of counsel for the plaintiff in closing address also proceeded on the basis that for the purposes of the analysis required by s 43, the risk of harm was cancer, and the risk that cancer would grow –

My friend did concede foreseeability, as I understood his concession. So that simply takes you to the test in 43(2) and 43(2) is, and this is what we say, a reasonable person in the position of Dr Tran would have taken precautions against the risk of harm. Section 43(2) of the Civil Law (Wrongs) Act provides that, ‘In deciding whether a reasonable person would have taken precautions’ a court must consider, amongst other things, ‘the probability that the harm would happen if precautions were not taken’.  Well, if there was no diagnosis - and I think Professor Fox has answered that question and Dr Page has answered that question.  If it is not diagnosed, the cancer will grow and that is where we are.  ‘The likely seriousness of the harm’.  Well, one can’t get a case more serious than this one, your Honour.  ‘The burden of taking precautions’.  Your Honour, that is why I took you to the burden of ringing a patient, which Dr Tran says wouldn’t be difficult.

75․The above submissions of counsel for the plaintiff in final address at trial concerning s 43(2) were brief, and focussed on the seriousness of the harm, which had been conceded by the defendant as being foreseeable, and the burden of taking precautions. The submissions relating to the probability of harm that are set out above appear to relate to the probability of harm upon the hypothesis that there was no diagnosis of the lymphoma, which risked venturing into hindsight reasoning.

76․In accordance with the authorities, the judge recognised at J[71], which we set out at [24] above, that the identification of the risk of harm was central to applying s 43, and that only once the risk of harm is known can one assess a reasonable response to the risk, citing Roads and Traffic Authority (NSW) v Dederer at [59] (Gummow J). The risk identified by the judge at J[72]-[73] was the risk of lymphoma, and its progression if undetected. The judge’s identification of this risk of harm was in accordance with the way in which the case had been argued at trial.

77․The judge gave specific attention to s 43(2)(c), and to the burden of taking precautions to avoid the risk of harm, and whether a reasonably competent general practitioner in the defendant’s position would have taken the precautions that the plaintiff alleged should have been taken. At J[76], the judge stated that this was an issue on which the parties diverged.

78․The plaintiff’s complaint on appeal was that, while the judge addressed s 43(2)(c), her Honour did not address (a) or (b). We do not accept that submission. The issues raised by s 43(2)(a) and (b) were hardly in dispute. Commencing with s 43(2)(b), the likely seriousness of the harm that was subject to the risk of harm that her Honour identified was that a delay in diagnosis would leave lymphoma untreated and develop to a point that was terminal, which the judge identified at J[72] which we have set out at [24] above. Her Honour noted at J[73] that there was no dispute that this risk was foreseeable.

79․As to s 43(2)(a), the probability of harm was referred to by her Honour when addressing the expert evidence. At J[97], her Honour referred to Associate Professor Clyne’s evidence that non-Hodgkin’s lymphoma was a rare explanation for symptoms initially presenting as leg or back pain, and that he had seen about three cases in his 45 years of practice as a general practitioner. At J[104], her Honour referred to Dr Marles’ evidence that non-Hodgkin’s lymphoma had an incidence of 15 out of 100,000 women in Australia, constituting an uncommon presentation in clinical practice. The judge referred to this evidence again at J[120]-[121] in concluding that a differential diagnosis that did not include non-Hodgkin’s lymphoma was reasonable. It was upon this premise that the judge then reasoned that –

(a)the vast majority of musculoskeletal pain will get better on its own (J[138]);

(b)a reasonable general practitioner was entitled to assume that a patient in the plaintiff’s position would come back of their own volition if the pain persisted at a level above that of a minor irritation (J[139]); and

(c)her Honour was unpersuaded that upon the first consultation, a reasonable general practitioner would not have first relied in some way on seeing whether the pain dissipated over time with pain relief to manage the symptom in the meantime, and the plaintiff then re-presenting – either at the Practice or elsewhere in the system if her pain had not resolved (J[143]).

80․Accordingly, her Honour did take account of both the likely seriousness of the harm and the probability of it occurring. Both matters were intrinsic to her Honour’s analysis of whether, in the circumstances, reasonable care required the defendant to do more than he did. The error the subject of the amendment to the notice of appeal is therefore not established. It follows that we do not accept the arguments advanced by the plaintiff that were contingent on establishing that the judge had not addressed s 43(2)(a) or (b) of the Civil Law (Wrongs) Act.  We have rejected the plaintiff’s challenge to the judge’s central findings that, in the circumstances, the defendant did not act unreasonably by relying on the plaintiff re-presenting if her pain had not resolved.  No error having been established, there is no occasion for this Court to make its own findings, assuming that it was in a position to do so.

Causation

81․The rejection of the plaintiff’s grounds of appeal directed to the judge’s findings that there was no breach of duty is dispositive of the appeal.  It is therefore unnecessary to address those grounds directed to the judge’s additional findings as to causation, which were made upon assumptions that the plaintiff had established a breach of duty in one of the several ways that were alleged: see, Boensch v Pascoe [2019] HCA 49; 268 CLR 593 at 600-1 [7]-[8] (Kiefel CJ, Gageler and Keane JJ), 629 [101] (Bell, Nettle, Gordon and Edelman JJ). One of the difficulties in addressing causation on appeal is that the Court would be required to make alternative assumptions about factual findings as to breach that we have rejected, as a result of which any consideration would have a hypothetical aspect: see Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [565] (Bromwich, O’Callaghan and Wheelahan JJ). This consideration is amplified by the fact that, in part, the plaintiff’s case on breach was argued on appeal on a basis that was not run at trial: see [52] above.

Notice of contention

82․In the above circumstances, it is unnecessary to address the issues raised by the notice of contention.

Conclusion

83․The appeal is dismissed. 

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 29 November 2023