Bourke v MacNeil

[2000] NSWCA 144

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Bourke v MacNeil [2000]  NSWCA 144

FILE NUMBER(S):
40657/98
40666/98

HEARING DATE(S):           23/03/00

JUDGMENT DATE:            14/06/2000

PARTIES:
Steven Gowan Bourke - Appellant
Peter MacNeil - Respondent
Peter MacNeil - Appellant
Steven Gowan Bourke - Respondent

JUDGMENT OF:      Mason P Heydon JA Rolfe AJA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        20391/97

LOWER COURT JUDICIAL OFFICER:     Murray AJ

COUNSEL:
Mr B.M.J. Toomey QC/Mr R.L.Ingram - Bourke
Mr A.J. Sullivan QC/Mr I.F. Butcher - MacNeil

SOLICITORS:
Denniston & Day - Bourke
Blake Dawson Waldron - MacNeil

CATCHWORDS:
Medical - medical negligence - specialist general surgeon - alleged failure to warn about possible post-operative complication - dispute about whether such complication occurred - plaintiff's history to several treating doctors inconsistent with evidence given at much later trial - importance of admissions - trial Judge's findings overturned - (ND).

LEGISLATION CITED:

DECISION:
1. The appeal by Dr MacNeil be allowed
2. In lieu of the orders made by Murray AJ set aside the judgment in favour of Mr Bourke in the sum of $358,608 and order judgment for Dr MacNeil in the proceedings
3. Mr Bourke's appeal be dismissed
4. Mr Bourke pay Dr MacNeil's costs of the proceedings at first instance, and of the appeals and have a certificate pursuant to the Suitors Fund Act if otherwise entitled.

JUDGMENT:

114

I  N  D  E  X

Para

Introduction   3

An Analysis Of His Honour’s Reasons   15

The Histories   29

The Evidence Of Dr Fleming   34

The Evidence Of Dr Childs   52

The Evidence Of Mr Bourke   71

The Evidence Of Professor Piper   94

The Evidence Of Dr Bambach  108

The Evidence Of Professor de Carle  130

The Evidence Of Dr MacNeil  151

The Evidence Of Dr Blaxland  175

The Evidence Of Dr Yeo  187

Conclusions Thus Far  191

Evidence Of The Lay Witnesses  208

Conclusions  231

Other Issues Raised  239

Result  241

THE SUPREME COURT  
OF NEW SOUTH WALES

COURT OF APPEAL

CA 40657 of 1998

SC 20391 of 1997

MASON P
  HEYDON JA

ROLFE AJA

Wednesday, 14 June 2000

BOURKE   v   MacNEIL

JUDGMENT

1. MASON P:               I agree with Rolfe AJA.

2. HEYDON AJA:         I agree with Rolfe AJA

   ROLFE AJA:

   Introduction

3. On 10 December 1984, the defendant, Dr Peter MacNeil, a highly qualified Specialist General Surgeon, for whom Mr A.J. Sullivan of Queen’s Counsel and Mr I.F. Butcher of Counsel appeared in this appeal, performed a Nissen Fundoplication operation on the plaintiff, Mr Stephen Gower Bourke, for whom Mr B.M.J. Toomey of Queen’s Counsel and Mr R.L. Ingram of Counsel appeared, to relieve a condition of oesophageal reflux.  Mr Bourke alleged that the operation was carried out negligently in that Dr MacNeil performed a vagotomy, which was neither required nor authorised. 

4. Mr Toomey opened the case at trial as one in which Dr MacNeil “inadvertently” performed a vagotomy in the vicinity of the vagus nerve during the fundoplication, and, as Mr Bourke continued to suffer gastric symptoms after the operation, it could be inferred that there had been a severing or interference with that nerve.  The trial was conducted on the basis of this allegation for some time until it became clear that Mr Bourke could not establish it,  whereupon the allegation was abandoned.  Before that  much evidence was given about the consequences of an inadvertent vagotomy.   Some of it indicated that the symptoms from which Mr Bourke suffered post-operatively were referable to a truncal vagotomy and not to fundoplication syndrome, thus further complicating an already complex mass of evidence as to Mr Bourke’s condition and, more importantly, the cause of it. 

5. Mr Toomey conceded that he could not pursue this issue of negligence and the learned trial Judge, Murray AJ, said that the fundoplication operation was carried out in a completely satisfactory way:-

   “I wish to make it clear that the operation was carried out expertly by Dr MacNeil, and there was no complaint about the operative procedure itself.  I accept that the plaintiff falls into that small category of patients, who suffer the continuing effects of the ‘post fundoplication syndrome’.”

6. The only allegation of negligence ultimately pursued at trial, and on which Mr Bourke succeeded, was that Dr MacNeil did not adequately warn him of the material risks associated with the operation and:-

   “.. in particular, the material risk that he would not be cured or relieved of his then symptoms, or, put differently, he would suffer from a condition known as ‘post fundoplication syndrome’.”

   There was no allegation that the fundoplication was not a proper operation to cure Mr Bourke’s symptoms, nor that Dr MacNeil should have carried out any further or other investigations before operating to ensure that it would not affect any other condition from which Mr Bourke was or may have been suffering.  This was significant because there was an abundance of evidence that pre-operatively and post-operatively Mr Bourke was suffering from a condition of gastric motility, which could have caused the post-operative symptoms of which he complained independently of or, perhaps, in combination with the fundoplication operation.

7. The passage I have quoted from his Honour’s reasons in paragraph 4 points up one of the essential matters his Honour had to decide, viz whether Mr Bourke suffered from post-fundoplication syndrome.  Unless he did, even accepting that Dr MacNeil should have given the warning, the negligence in failing to do so was not causative of the subsequent medical condition from which Mr Bourke suffered and, in those circumstances, there should have been judgment for Dr MacNeil.  For reasons I shall explain, I do not consider that Mr Bourke discharged the onus, which clearly lay upon him, of proving that he suffered from post-fundoplication syndrome.  Accordingly, in the view I take, the appeal should be allowed and, in lieu of the orders made by his Honour, there should be a verdict for Dr MacNeil with costs.

8. His Honour assessed damages in the sum of $358,608, a figure at which he arrived by an initial calculation of $896,650 reduced by sixty per cent because:-

   “I think this ‘chance’ element impacts on every aspect of the damages in this case.  Accordingly, I shall proceed to the assessment on a full value basis, but reduce the final result by 60%.”

9. His Honour identified the “chance” thus:-

   “In a case such as the present, where I have determined that the plaintiff’s loss is the loss of the chance of improvement or cure of his symptoms by conservative means, rather than operative treatment, I must bear in mind the approach detailed by the High Court in Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 ..”.

   Accordingly, his Honour assessed that Mr Bourke only had a forty per cent chance of having his symptoms improved or cured by conservative means, rather than by having the operation.

10. He set forth portion of the joint judgment of Deane, Gaudron and McHugh JJ at p.642, and continued:-

    “My assessment of the chance that the plaintiff would have obtained substantial improvement or cure from conservative means, without operation, including all the imponderables referred to above, is 40%.”

    This led Mr Sullivan to submit that there was a finding that it was more probable than not that the fundoplication operation would have been carried out in any event with the consequence that if Mr Bourke suffered from post-fundoplication syndrome, which he did not concede, that also would have happened in any event.

11. Both parties have appealed against his Honour’s findings, Dr MacNeil’s appeal concentrating particularly on causation, and Mr Bourke’s on the quantum of damages and, in particular, the extent of the reduction his Honour made for the perceived chance.  Mr Toomey’s basic submission was that certain statements in Chappel v Hart (1998) 195 CLR 232, judgment in which was handed down after his Honour’s decision, led to the conclusion that once it was found that there was a failure to warn there was no room or justification for the operation of the “loss of chance” principle as the negligent act was complete and there was no basis for reducing the damages.

12. The case at trial presented a number of evidentiary and legal complications.  At an evidentiary level the following matters were in issue:-

    (a)What Mr Bourke’s pre-operation condition was.  There was much evidence from which a finding could have been made that it was the same as after the operation, the most compelling being statements made by him to a number of doctors both before and after the operation.

    (b)What Mr Bourke’s post-operative condition was.  There was much evidence in histories provided by him that he felt well for some time after the operation, the difficulties of which he complained not commencing until about June 1985, in respect of which he did not seek medical advice until November 1985.

    (c)Various relatively contemporaneous doctors’ notes bore out his statements of satisfaction with the relief obtained after the operation and the subsequent, but much later, onset of further pain.  On the other hand, his wife and some friends gave various, although not totally consistent, evidence of almost immediate pain and problems very soon after the operation.  The significance of the temporal sequence is that the medical evidence was that post-fundoplication syndrome manifests itself almost immediately after the operation and then generally, and in the vast majority of cases, subsides.

    (d)There was the sheer improbability of Mr Bourke suffering to the degree to which he, his wife and friends attested from January to November 1985 without seeking any medical help.

    (e)There were statements made by Mr Bourke in support of an insurance claim that he had not commenced to suffer until June 1985, and to Dr Sharrock, who took a history for an invalid pension application, that he had been well for a lengthy period of some eighteen months to two years after the operation.

    (f)Apart from post-fundoplication syndrome, there was evidence that the symptoms of which Mr Bourke complained were only attributable to a truncal vagotomy and not to post-operative fundoplication. There was also evidence that the symptoms were attributable to a gastric motility condition, which he did have.  The diagnosis in relation to the truncal vagotomy was obviously wrong, because he had no such operation, but the medical evidence in relation to it also provided evidence that the symptoms were not caused by the fundoplication. His Honour made no finding in respect of the other possible causes.

13. His Honour accepted the evidence of Mr Bourke and, at least inferentially, that of his lay witnesses.  That, however, created rather than solved problems in determining the case in Mr Bourke’s favour.  First, so far as Mr Bourke’s oral evidence was accepted it had to be ranged against the statements which, notwithstanding his denials at trial, the doctors recorded he had made.  If Mr Bourke was a witness of truth one would have expected consistency between his evidence and statements to the doctors, or an acceptable explanation for the differences.  The doctors made their notes when no litigation was contemplated and, in any event, most of them had no concern with any litigation.  But they noted a consistent history, which, on Mr Bourke’s evidence, was quite wrong.  No explanation for these discrepancies was offered. Secondly, his Honour made no finding that any of the doctors recorded the history wrongly or misunderstood what Mr Bourke told them.  Nor did he find that Mr Bourke was a poor historian.  Thirdly, if Mr Bourke and his friends were to be accepted, Mr Bourke was suffering in a very severe way from January 1985. This gave rise to the matter of improbability to which I have referred, viz the failure to seek medical advice until early November 1985, a period of some ten months.  It was also at odds with the evidence of Mrs Bourke that if her husband was suffering severely she ensured he saw a doctor.  He saw Dr MacNeil on two occasions, viz in January and March 1985, and, according to Dr MacNeil’s notes, not only made no complaint, but asserted that he had relief from the operation. There was no reason for Dr MacNeil not to record truthfully and accurately what he was told and no finding was made that he did not. Mr Bourke also told others that he did not start to suffer until June 1985.  He saw Dr Fleming in early 1985 and was told by Dr Fleming that if he had any problems he should see him.  Mr Bourke did not do so until November 1985.

14. Each of these evidentiary conflicts and problems demanded judicial confrontation.  Unfortunately his Honour did not address a number of them.  They also required consideration in the light of the operation having been carried out in December 1984, proceedings having been commenced in 1990 and the trial being held in 1997.  It is hardly surprising that the lay witnesses had some difficulty of independent recall, thus adding weight to the desirability of recourse to reasonably contemporaneous documentary evidence as probably more likely to be accurate.

    An Analysis Of His Honour’s Reasons

15. His Honour identified the warning issue as that for determination, and dealt briefly with Mr Bourke’s background.  He was born in Wagga Wagga on 19 February 1950, and carried out various forms of building and associated work until, in December 1982, he commenced his own concrete laying business, which was run through a family trust.  At times he employed up to nine men.  His Honour found that up to December 1982 Mr Bourke experienced significant stomach pains, including cramping and burning when he consumed alcohol, although this did not prevent him working.  Inferentially his Honour found that these types of pain persisted until he consulted a general practitioner, Dr R.G. Fleming, on 15 October 1984, who diagnosed epigastric and abdominal pain and prescribed Librax.  On 18 October 1984 a Barium Meal was performed, which revealed no particular abnormalities in the abdominal region and, although he continued to visit Dr Fleming, there was no improvement in his condition.  He underwent an ultrasound and endoscopy and was referred by Dr Fleming to Dr MacNeil, who recommended the Nissen Fundoplication.

16. His Honour recorded that after discharge Mr Bourke claimed to have immediately suffered bloating of the stomach, which was accompanied by alternate periods of constipation and diarrhoea and, by the end of January 1985, he recommenced his concrete laying work but, by June of that year, had ceased physical work and was acting only in a supervisory capacity.  On 4 November 1985, he returned to see Dr Fleming complaining of nausea, diarrhoea and severe stomach bloating and, after another endoscopy, Dr Fleming prescribed Tagamet on 13 November 1985.  However, the bloating worsened and his wife and friends said the distension of his stomach was clearly visible to them.

17. Because of the continuation of severe stomach pain and the problems facing his business, Mr Bourke applied for disability insurance from MLC Life Insurance Limited in July 1986.

18. After a number of consultations with Dr Fleming and Dr Childs, the latter being a specialist physician who Mr Bourke saw before the fundoplication operation, Mr Bourke was referred by Dr Fleming to Professor Piper at Royal North Shore Hospital and, after two consultations with him, he had a Barium Meal which showed the fundoplication to be working adequately.

19. On 1 June 1987 Mr Bourke was again admitted to Royal North Shore Hospital and underwent an oesophageal motility study, Barium Meal and gastric emptying study.  A subsequent endoscopy revealed that the fundoplication remained intact.  Further tests at that hospital in 1987 revealed, for the first time, that there may have been some problem, which was not suggested to be relevant, as I understand it, for the purposes of this case.

20. In October 1987 Mr Bourke ceased to work in a supervisory capacity and closed down his business.  Thereafter he received social security benefits from 16 November 1987 and, throughout that year, he had been consulting Dr Fleming for severe abdominal pain and bloating, which was treated by Pethidene and Bruscopan injected intramuscularly.  That treatment appeared to have little effect and, on 5 February 1998, Dr C.P. Bambach performed an anthrectomy with a roux-en-Y reconstruction, which appeared to gradually and temporarily relieve the condition.  By 4 November 1988 Mr Bourke was experiencing significantly smaller bouts of bloating and his sleeping had improved, although he was still unfit for work.

21. In February and July 1989, Mr Bourke consulted Dr J.E. Kellow at Royal North Shore Hospital and, on 27 November 1990, a Barium Meal was performed in which no intrinsic abnormalities of the stomach were detected.

22. Mr Bourke has not worked since 1986 and continues to undergo medical treatment.

23. After setting forth this history, his Honour dealt with the obligation to warn in the context of the High Court’s decision in Rogers v Whittaker (1992) 175 CLR 479 and with Dr MacNeil’s “case”. In the course of so doing he dealt with the conflict between Mr Bourke’s and Dr MacNeil’s evidence as to the extent to which a warning had been given and, Red Appeal Book p.36, concluded:-

    “On the whole of the evidence, on this issue, I have come to the conclusion that the plaintiff was not adequately advised by the defendant to enable the plaintiff to make a rational choice to undertake the surgery.

    I do not accept that the plaintiff was warned in the terms set out in para 4B of the Interrogatories.  In particular, I do not accept that the percentages set out in that paragraph were conveyed to the plaintiff.  Taken at their face value, they represent a 50/50 chance of cure.  To my mind, it is inconceivable that the plaintiff would embark upon major surgery if the alternatives were presented to him in that way.”

24. His Honour accepted Mr Bourke’s evidence that the only risks about which he was told were those associated with anaesthetic, although he also accepted that Dr MacNeil would have explained “in general terms” the nature of the operation, and the risks associated with it “such as the risks associated with anaesthetic and other general risks”.  His Honour was satisfied that Dr MacNeil would have explained “the possibility of some post-operative discomfort, including some digestive symptoms whilst the fundoplication was settling down”.  There is, in my opinion, an inherent difficulty with this finding as his Honour made no specific finding as to what “other general risks” Dr MacNeil would have explained, nor as to what he told Mr Bourke about post-operative discomfort, and digestive symptoms, whilst the fundoplication was settling down.  These matters were of obvious significance in a case where the issue was whether Dr MacNeil had given a proper warning.

25. His Honour continued:-

    “However, I do not accept that he would have explained the likelihood of no relief, nor do I accept that he would have explained the liability of the plaintiff to suffer continuing gas bloat to a disabling degree.”

26. He was of the opinion that the decision to operate was made without “much reference” to Mr Bourke “at all”, and that Dr MacNeil did not exercise sufficient care in outlining to Mr Bourke the alternatives to an operation.  His Honour continued, Red Appeal Book p.37:-

    “Really, the plaintiff’s symptoms were not so marked that they cried out for operative intervention.  He himself said that the symptoms were brought on, principally, following bouts of excessive drinking.  The trial of medication was but for two-three weeks.  Slight moderation of his lifestyle and a more intensive course of medical treatment may well have obviated the necessity for operation at all, in my opinion.”

    This finding is inconsistent with his finding that Mr Bourke had only a forty per cent chance of cure by medical rather than operative means.  It also overlooks the evidence that Mr Bourke had been on medication for some six weeks before the decision was taken to operate, which the uncontradicted medical evidence stated was sufficient for it to be effective, if it was the proper treatment, and that Dr Childs did not consider Mr Bourke would be cured by taking medicine, rather than by an operation.

1. His Honour concluded this portion of his reasons by accepting the evidence of Mr Bourke that had it been explained to him that there may not have been a relief of his symptoms, he would have moderated his lifestyle and tried other medical solutions.  He did not accept that his condition was as disabling as Dr MacNeil’s counsel contended for “such that he would have not tried more conservative means of relieving his condition”, notwithstanding that he found that conservative treatment had a less than fifty per cent chance of success. He said:-

   “It follows from the above findings, that I find that there was a material risk of persisting post-fundoplication syndrome, namely ‘gas bloat’, which was likely to be incapacitating to the extent of disablement from work, which risk was not explained to the plaintiff by the defendant, and, was of such a nature, as to be one to which the plaintiff was likely to attach significance and such that if explained to him, the plaintiff would not have proceeded with the operation.  Further, I find that it was a risk, of which, the defendant was aware, on his own admission, but which he did not explain.”

   The passage is consistent with his earlier finding, to which I have referred, that the relevant consequence of the operation was post-fundoplication syndrome.  The essential question is whether Mr Bourke proved this.

2. His Honour nextly considered causation in the context that the effect of his findings thus far was that Mr Bourke lost the opportunity of making an informed decision concerning his future treatment.  He questioned whether, based on Mr Bourke’s evidence, he would have proceeded with the operation if it had been explained to him that the chances of cure or amelioration of the symptoms were in accordance with the proportions disclosed by the evidence.  He acknowledged that Mr Bourke may have elected to continue with conservative medical treatment and moderation of lifestyle but, if that was not successful, that he may have been driven to the operation in any event, and he acknowledged that these were difficult questions to resolve.  Somewhat repetitively one notes that the ultimate finding was that there was, in his Honour’s opinion, a sixty per cent chance that there would be an operation.  It was submitted on behalf of Dr MacNeil that there was no evidence that a moderation of lifestyle and medication would have alleviated Mr Bourke’s condition.  His Honour recognised that to put these questions into their proper context it was necessary to trace Mr Bourke’s post-operation history which he noted was the subject of “some conflict” in the evidence.  In my opinion, a major difficulty is that this conflict, which was critical, was not resolved.

   The Histories

3. A month after the operation Dr MacNeil wrote a report to Dr Fleming advising that he had reviewed Mr Bourke, who was pleased with the comfort he had achieved since the operation and the absence “so far” of symptoms of his previous reflux.  The letter continued that he suggested that Mr Bourke recommence work in about two weeks and have a final review in two months.  On 13 March 1985 Dr MacNeil again reported to Dr Fleming stating that Mr Bourke had been back at work for six weeks and that he was pleased to say that Mr Bourke remained delighted with his result “and the forms of exertion associated with his previous severe comfort (sic) no longer cause any trouble whatsoever”.  Dr MacNeil said that he had made no arrangements to see Mr Bourke again.

4. The significance of these histories, from Dr MacNeil’s point of view, was that the evidence was that if a  post-fundoplication syndrome developed, it manifested itself within a short time after the operation.  Further, the histories recorded by Dr MacNeil in those reports must be contrasted with the evidence of Mr Bourke, his wife and workers that soon after the operation he was suffering quite significant discomfort and bloating.

5. Mr Bourke said he “ran into” Dr Fleming at the supermarket and told him “I was just sore”.  Dr Fleming asked him whether he returned to work too early, and Mr Bourke replied that he probably did to which Dr Fleming said that if he became any worse to come and see him.  Mr Bourke said that was about three months after the operation and that he went to see Dr Fleming “near the end of the year”.  That date was identified as 4 November 1985.  Mr Bourke was asked why he waited so long to which he replied:-

   “Because I thought it was my own fault for going back to work too early.”

   However, his case was that the problems commenced before he returned to work. He said his condition when he went to see Dr Fleming in November 1985 was bloating and the trouble with his bowel was just getting worse.

6. Dr Fleming did not recall the conversation at the supermarket, but he said that had it occurred he would have advised Mr Bourke to see Dr MacNeil.  For present purposes it matters not whether Dr Fleming told Mr Bourke to see him or Dr MacNeil.  On any view he told him to seek medical advice if the problems continued, which Mr Bourke did not do for some eight months.

7. Nextly, Dr MacNeil relied upon the evidence of Dr Fleming, Black Appeal Book p.85, Dr Fleming having been called in Mr Bourke’s case.

   The Evidence Of Dr Fleming

8. In his evidence in chief Dr Fleming was taken through a report he  prepared on 7 November 1988.  He was referred, firstly, to the history of complaints he received on 15 October 1984.  He had noted intermittent crampy epigastric and abdominal pain and “crampy belly ache worse over last few months, come and go”.  He referred in his notes to indigestion and difficulties after drinking alcohol and to his arranging for Mr Bourke to have a Barium Meal and an ultrasound.  His report continued that Mr Bourke’s condition continued to become worse.  At Black Appeal Book p.83, he was asked about seeing Mr Bourke on 4 November 1985, when he noted his complaints were “nausea, vomiting and severe central chest discomfort”.  He also noted:-

   “There was also a history of bloating, wind and crampy abdominal pains.  That is the same as when first seen on 15 October 1984.”

9. At p.84 he confirmed that his symptoms were the same as when he had first seen him on 15 October 1984, although he made no mention of “bloating” on that date.

10. At p.85 Dr Fleming was asked about referring Mr Bourke to Dr Childs.  He said he saw Mr Bourke on 12 September 1986, and he was asked whether he would have referred him for further review if he thought his condition was the same, to which he replied:-

    “A. His condition - I am not quite - his condition had progressively, from what I can see here since when I saw him, he had his operation on 10.12.84 and I then saw him nearly twelve months later on 4.11.85 and that was when he started to get his nausea, his vomiting and discomfort and he in fact got worse because, as you can see, he was taking increasing amounts of Tagamet trying to relieve himself so that is when I referred him for further review.”

    He said he referred him because he thought the condition was “deteriorating”.

11. In cross-examination Dr Fleming agreed that in a letter he wrote to an insurer on 15 October 1987 he described a history of “constant epigastric and central chest discomfort for months prior to seeing me on October 1984”, and he confirmed that was the history he received.  He also agreed that “constant” meant that the pain was present all the time and not just when Mr Bourke had drunk alcohol to excess, that the epigastric pain was constant and that if Mr Bourke had told him the pain was simply related to drinking his advice would have been to stop drinking. Dr Fleming agreed Mr Bourke’s troubles were much more complicated than that.

12. Dr Fleming had a history on 15 October 1984 of Mr Bourke’s being a concreter and that every time he bent over the pain became worse and:-

    “Q. Now you have written, do you agree, ‘in view of the severe incapacitating nature of the complaint’?
    A. Yes.

    Q. Can the Court take that although he may not have used the word ‘incapacitating’ he described his problems as being so severe that they were incapacitating him?
    A. Yes.

    Q. And they were causing him serious problems with his work?
    A. As far as I am aware, yes.

    Q. And was that on the basis of what he told you?
    A. Yes.

    OBJECTION

    Q. And that is on the basis of what he told you in October 1984?
    A. Yes, as far as I can understand, his condition didn’t greatly alter from over that period of time.  That is why he had all the investigations”: Black Appeal Book p.88.

    Thus, there was evidence in Mr Bourke’s case that in October 1984 he was suffering in a way which caused “serious problems with his work”, evidence to which his Honour made no reference.  It is evidence which significantly affects his Honour’s observation (Red Appeal Book p.17P), just before referring to the 15 October 1984 consultation with Dr Fleming, that “the plaintiff was not prevented from working as a result of these pains”.  It also sits badly with Mr Bourke’s testimony, which as summarised by his Honour at Red Appeal Book p.25K, was that he “strenuously disagreed that [his discomfort] had prevented him at any time from performing his work as a concreter”.  It points against the following finding of his Honour (Red Appeal Book pp.37V-38C): “I do not accept that the plaintiff’s condition was as disabling as the defendant’s counsel contends, such that he would have not tried more conservative means of relieving his condition”.

13. Dr Fleming agreed that he had written that following the operation Mr Bourke felt well until about mid-1985, when he developed symptoms of irritable bowel syndrome with retrosternal and epigastric discomfort, and that his note that Mr Bourke felt well could only have come from something Mr Bourke told him.  The history was contrary to the evidence of Mr Bourke and his lay witnesses, consistent with other admissions made by Mr Bourke, consistent with the position explained to Dr MacNeil and inconsistent with the evidence as to the time within which post-fundoplication syndrome manifests itself.

14. Dr Fleming said that he noted on his card for 4 November 1985 Mr Bourke’s complaints of nausea, vomiting and central chest discomfort and that his condition was “same as when first seen on 15 October 1984”.  He agreed that in a later report he wrote, in relation to the November 1985 consultation:-

    “There is also a history of bloating, wind and crampy abdominal pain, i.e, the same as when first seen on 15 October 1984.”

    He said that he took care to accurately set down the history Mr Bourke gave as best he could, and:-

    “Q. When you wrote there was also a history of bloating, wind and crampy abdominal pain the same as when first seen on 15 October 1984, you were clearly intending to indicate that all of the symptoms were the same nature of symptoms as he had presented with on 15 October 1984, is that not right?
    A. That is as I have written it, correct.

    Q. And in 1988 when you prepared this report your memory of the plaintiff’s condition in 1985 would have been better than today?
    A. That is correct.

    Q. And you are confident are you not that the plaintiff’s symptoms as at 15 October 1984 included all of those things, bloating, wind, crampy abdominal pain, nausea, vomiting and severe central chest pain?
    A. I have omitted, as you can see, a couple of things there like central chest pain or the pain recorded on 15.10.84 and another his bloating has not been recorded but if you look at the end of that you will see I have prescribed Librax and then I have written a diagnosis of that.  I basically have treated this man for irritable bowel syndrome which in fact I would not have done if I did not think he had it so going back over that, the answer to your question is yes but I would have thought all those things would have been the same on 15.10.84.

    Q. The plaintiff did have the bloating and wind and crampy abdominal pain back in October 1984 as he told you?
    A. I would have said yes.”

    This was very significant evidence.  It showed that Mr Bourke had essentially the same problems before as after the operation.  Yet Mr Bourke denied that was the position, complaining that the pre-operative pain was caused only by over indulgence in alcohol.

15. Dr Fleming agreed that irritable bowel syndrome was a generalised problem of motility in the gastrointestinal tract, which was associated with crampy abdominal pain, feelings of distension and bloating and constipation, and is thought to be due to problems with the propulsion of foods or muscle action throughout the gastrointestinal tract.  That of which Mr Bourke was complaining before and after the operation was consistent with the motility problem.

16. Dr Fleming said that irritable bowel problems were common in his practice and he had a lot of experience treating them, and, Black Appeal Book p.92:-

    “Q. Given that you took a history that the plaintiff had this abdominal pain, bloating and wind and other symptoms prior to his operation with Dr MacNeil?
    A. Yes.

    Q. You would agree he had more than an irritable bowel syndrome before the operation?
    A. Yes.”

17. Dr Fleming was asked to describe the symptoms of which Mr Bourke told him.  He said he had not recorded them but if there was a record of something like irritable colon or irritable bowel in the notes that meant to him:-

    “.. you have a crampy bowel, abdominal distension and probably alternating constipation and diarrhoea.”

18. Dr Fleming agreed that on 24 June 1988 Mr Bourke was suffering from irritable bowel syndrome, which he treated, and, by 30 June 1988, he again thought Mr Bourke had severe irritable bowel syndrome, which he treated.  He continued to treat him for that problem from 28 July 1988 and he considered that his predominant problem was irritable bowel syndrome at that time, and:-

    “A. But not in - 84 when he presented.  He had both excessive acid symptoms as well and crampy pain whereas at this point in time he was going through a bad phase with more irritable bowel syndrome than I thought with constipation as you can see there, a lot of wind and a lot of distension and a lot of pain.  I have not recorded a lot of burning and indigestion during that time.”

19. At p.95 Dr Fleming agreed that in 1988, 1989 and 1990 Mr Bourke had far more problems from irritable bowel syndrome than from his acid problem.

20. Dr Fleming was asked what he would have done if Mr Bourke, having undergone a fundoplication, mentioned to him in a car park that he had developed symptoms including severe bloating post-operatively.  He said he would have told him to make a time and come back to see him, and if he was satisfied that the symptoms as described to him by the patient were significant, he would recommend he go back and see his surgeon.

21. At Black Appeal Book p.101, Dr Fleming said that on 23 April 1987 he diagnosed irritable bowel syndrome and, in his report of 7 November 1988, he said that he considered Mr Bourke to have gastro-oesophageal reflux with surgery and post-operative gastric stasis with further surgery, although he agreed that in relation to these diagnoses he would defer to surgeons and gastroenterologists.

22. In re-examination, Black Appeal Book p.102, Dr Fleming was asked about the position on 15 October 1984 in which he had referred to nausea, vomiting, severe central chest disorder, bloating, wind and cramping abdominal pain.  He said Mr Bourke was distinguishing between two sets of symptoms and, at Black Appeal Book p.103, he said there was a change in Mr Bourke’s condition between the condition before and the condition after operation in that he was better after the operation.  He continued that initially Mr Bourke improved:-

    “.. and then he came back to see me on 13 - 4/11/85 when he obviously started to go bad again.”

23. Dr Fleming said that Mr Bourke’s condition deteriorated from November 1985, and he treated him for irritable bowel syndrome.

24. Subsequently Dr Fleming was recalled and, at Black Appeal Book p.106, he was asked by Mr Toomey, who was given leave to cross-examine him on a limited basis, about a letter of 28 July 1986 from MLC Disability Insurance and his reply.  The cross-examination, as I understand it, went to the question as to whether there had been a vagotomy. 

25. At p.109, in re-examination, Dr Fleming gave further evidence in relation to the meeting in the supermarket and he said that whether he would have suggested to Mr Bourke to return to see him would have depended on his impression of the severity of the symptoms being described to him.

    The Evidence Of Dr Childs

26. On 5 November 1984 Dr Childs, who was called by Dr MacNeil, wrote to Dr Fleming, after examining Mr Bourke.  He performed an endoscopy and concluded:-

    “As we discussed by phone today, this chap warrants a full week course of acute anti reflux medical treatment but I fancy it will be less than successful.  This being so, I think that his age would warrant consideration for surgery.  He will be in tomorrow to have a chat to you about his immediate treatment.”

    His Honour did not set out this evidence when assessing whether Mr Bourke should have been left on medication.

27. Dr Childs said he saw Mr Bourke on 29 October 1984, and received a history of:-

    “Four months ? Stress related.  Abdominal troubles.  Constant upper abdominal soreness.   Backache.  Exacerbation twice per week, usually early hours of the morning.  Bloating.  Some upper abdominal pain.  Bends over to ease pain.  Nausea plus plus.  No vomiting.  Occasion water brash.  Belching plus plus.  Abdominal rumbles.  Bowels okay.  Occasional loss of bowel control.  Weight increasing.  Seven pounds over two months.  Now approximately ten stone ten pounds.  Upset by hot coffee.  No specific food aversions.  General health good.  Respiratory cardiovascular urinary normal.  Not sleeping well.  Waking 2 am to 3 am.  Non smoker.  Social alcohol.  Therapy Librax, Nembudeine. N.B.G..  Barium meal normal.  Ultra sound abdomen?   Pancreatitis.  Urine clear.”

28. Dr Childs described “bloated” as “Fullness.  Distinct abdominal fullness.  Distension”.  He said he did not find that on examination but it was a symptom, although he then noted an entry:-

    “And bloated but fullness and tenderness”,

    which he found on examination.

29. Dr Childs said that he thought surgery was necessary because there was substantial reflux and, Mr Bourke was young and was carrying out a job which necessitated bending and lifting, which would tend to exacerbate reflux systems.  He said he anticipated that the drug regime he prescribed, if it was to have an effect or any significant effect, would operate within one week.  Clearly, Mr Bourke was subject to this regime for longer than that before the operation, viz some six weeks.  His Honour said, incorrectly on the uncontradicted evidence, that it was a much shorter time, viz two to three weeks.  Dr Childs also received a pathology history on histology, which revealed Barrett’s oesophagus, which he said tended to increase the risk of cancer, requiring regular surveillance and biopsy of the lower oesophagus at least every twelve months.

30. He was asked to assume that by the time Mr Bourke saw Dr MacNeil on 19 and 26 November 1984 he reported only slight relief from Gaviscon and Tagamet.  He said that would not surprise him, and that Mr Bourke should, in all those circumstances, have been offered surgery as an alternative to medical management.  He was also of the view that assuming that by 10 December 1984 the medical treatment had not given any significant relief at all, it would seem less likely that medical management had any long term future in his overall management.

31. Dr Childs did not see Mr Bourke until November 1985, after which he wrote his report of 7 November 1985.  The histology report indicated that the Barrett’s oesophagus had regressed. 

32. On 7 November 1985, he reported to Dr Fleming: Exhibit 24 Blue Appeal Book p.676.  He stated:-

    “Following his fundoplication in November 1984 Mr Bourke felt ‘terrific’ and remained thus until a few months ago when he began to have further GIT symptoms - these seem to fall into two types, one group being quite typical of an irritable bowel syndrome and the other more consistent with pylorospasm or gastritis, consisting of high epigastric pain with bloating and wind.  He has had no actual reflux symptoms.  His weight has dropped by about one stone.”

    Thus the history, as to the onset of further problems, was consistent with that given to Dr Fleming and Dr MacNeil, and inconsistent with post-fundoplication syndrome.

1. Dr Childs examined Mr Bourke and carried out an endoscopy noting that:

   “.. the degree of reflux was negligible and the fundoplication appears to have been, technically, quite effective.”

2. Dr Childs found a considerable increase in the quantity of resting gastric secretion and that the pylorus was very irritable.  He considered Mr Bourke’s acid secretion “must be fairly substantial”, and he continued:-

   “.. but the pylorospasm could be contributing to some of his pain and bloating symptoms.   However, it is rather disappointing to find this erosive oesophagitis.”

3. Dr Childs saw Mr Bourke again in September 1986 and, on 24 September 1986, he wrote to Dr Fleming:-

   “After a period of initial excellent health following his fundoplication, Mr Bourke again began to suffer from upper GIT symptoms with pain, flatulence, bloating and considerable nocturnal discomfort.  Conventional doses of Tagamet were ineffective as was the change to Zantac.  Mr Bourke now manages to barely control his symptoms with about six Tagamet daily but is sleeping badly and finds that his work (he is self employed) is suffering.”  (My emphasis.)

4. Dr Childs carried out a further endoscopy and formed the view that Mr Bourke was not adequately controlled by his present therapy.  He said that he would seriously consider vagotomy to control his acid secretion.

5. In cross-examination Dr Childs agreed that Mr Bourke was referred to him primarily for an endoscopy, his function being to carry out tests and to report to Dr Fleming regarding his opinion, but not to continue treatment personally.  When Dr Fleming sent Mr Bourke to him in November 1985 his function, as a gastroscopist, was to assess what was happening endoscopically, once again the primary function being to test and to report to Dr Fleming.  He agreed he only had his notes upon which to rely, which is not surprising having regard to the fact that he was being cross-examined some twelve years after the second consultation.  None-the-less they were a contemporaneous record and no reason to doubt them was suggested.

6. He was cross-examined about the description of bloating, agreeing that Mr Bourke said he had a feeling of fullness in the epigastrium, which is the upper part of the abdomen, which he would not describe normally as a “pot belly”.  Dr Childs agreed that in November 1984 he received a history of a half stone increase in weight over the months “immediately before he saw you”; that the normal Barium Meal would suggest no delayed gastric emptying; and that that, in turn, “would probably be consistent with no distension of the stomach”.  He also agreed that people with those symptoms decided not to have surgery, stating that it was their decision and:-

   “There are two major problems with a patient.  One is burning discomfort related to acid.  The second is the physical discomfort of reflux which can remain a major problem despite acid suppression”: Black Appeal Book p.394.

7. Dr Childs said that patients learnt to live with these symptoms and he went on to describe the development curve of anti-reflux medication, and that had Mr Bourke not had surgery he would have advised a trial of Bethanocol, and that it was difficult to say what the ultimate result of treatment with medications would have been because of surgery.

8. At Black Appeal Book p.395 Dr Childs stated that his notes were that the endoscopy revealed a congenital shortening of the oesophagus rather than oesophagitis.  He was asked what surgery would be warranted for that congenital condition, and he replied that a congenital short oesophagus was a term fairly widely used then “when in fact we realise it was a Barrett’s oesophagitis”, which he described, the oesophagus being shorter not by virtue of a congenital situation, but by the stomach lining cells growing into the oesophagus and:-

   “Q. Well, it is still not clear.  What surgery then is warranted for what was thought to be or what was described as a congenital short oesophagus which you have just said really was a Barrett’s oesophagus?
   A. Yes, well surgery under those circumstances by reducing reflux allowed the normal oesophageal mucosa to re-colonise further down the oesophagus, thus restoring the normal pattern.

   Q. And the surgery is fundoplication?
   A. Fundoplication.

   Q. Then would the surgery or recommended course of treatment be different if the diagnosis was one of oesophagitis?

   A. At that time no, one would still trial the available or the drugs to reduce acidity and, if possible, restore the integrity of the valve between the stomach and the gullet.”

9. Dr Childs described how he would have treated oesophagitis.  That was by various medications and a diet regime and the “avoidance if possible of too much bending, lifting”.  But he said that that would not constitute a cure if there was substantial reflux through a weak valve because the problem was mechanical.  He said the steps he would have taken might have made the patient more comfortable, but would not really control the underlying problem, which he described as reflux and physical.  He agreed that Bethanocol may have helped and he certainly would have tried anything that may have helped.

10. In re-examination Dr Childs said that the pathology report of 5 November 1984 indicated Barrett’s oesophagus, which he said was a different condition from reflux.  He also said that he did not advise Bethanocol and, Black Appeal Book p.398:-

    “Q. Given the previous history of the plaintiff, his personal characteristics which you described before including his build, the nature of his work and also the Barrett’s oesophagus what would you have regarded as the likelihood of Bethanocol controlling his problems?
    A. I think I have already said I think it unlikely that it would have substantially helped the patient’s symptoms.

    Q. In answer to a  question by my learned friend you referred to a number of non-medical aspects or non-pharmaceutical aspects of treatment including small meals, I think bending over and those sorts of things.  Compared to the chemical treatment of reflux and its associated problems, how important are they?
    A. They are of peripheral value.”

11. He repeated that what he observed was consistent with Barrett’s oesophagus.

12. Dr Childs was not challenged on the history he received from Mr Bourke and, in particular, he was not challenged on that part of the history stating that after a period of initial excellent health following his fundoplication, Mr Bourke again began to suffer the symptoms he described.

    The Evidence Of Mr Bourke

13. Mr Bourke gave his history, which included his having a cramping of the stomach from about late 1970 or early 1971.  He described his work, including his work as a concrete contractor, and he said the stomach pains continued between 1971 and 1984 being “pretty well always brought on after drinking and just when I drank at various times”.  He said he was a social drinker, drinking ten to twelve middies “probably” from time to time.  He said the problems associated with drinking continued until 1984, but did not cause him to lose even a day’s work and he would “just work through”.  He described the pain as bad cramping in the stomach and burning in the lower part, which lasted from a day to two days and was not aggravated by any particular sort of work.  His work involved the screeding of the concrete, which involved bending over and working with a straight edge for as long as six hours at a time.  He said he was able to do that “despite the pain in the stomach”.  He described consulting Dr Fleming in October 1984 after having “been drinking” over the previous week-end.  He said his problems, when he saw Dr Fleming, were:-

    “The same kind, the cramping in the stomach and the burning”

    indicating the upper part of the stomach where “it had always been”.  He was referred to Dr Childs and then to Dr MacNeil.  He said he told Dr MacNeil about his complaints as best he could.  There was a discussion about surgery and he said Dr MacNeil explained what he would do, which involved a Nissen fundoplication to prevent his body producing too much acid.  At Black Appeal Book p.9 he was asked whether Dr MacNeil told him anything about any risks of the procedure, and he said:-

    “I just wanted to know about the time off work and he said I would have four weeks off and then I could go for two weeks on light duty and then the only risk was the anaesthetic.  He gave me some large figure that something could go wrong but he said that wouldn’t be a problem and he said I would be able to continue my work as I wished after my recovery.”

    He denied he was given any percentages of the likely result of the operation or of the patients who did not get relief from it at all, or of the patients improved with a worthwhile degree of control but with digestive complaints of a varying degree.  He denied that he was told anything about bloating, constipation, the prospect of continuing pain after the operation, the risk of an inadvertent or accidental cutting of a nerve in the oesophagus, and:-

    “Q. Had he told you of these things would you have had the operation?
    A. No.

    Q. Why not?
    A. I would have given up drinking because that was, I would have tried that and continued on the tablets and hoped for the best.

    Q. You would have continued the medication?
    A.  Yes.”

14. He gave evidence about having the operation and how he felt after it. He said that:-

    “Instantly once I started to move I got bloating.”

    He described that as his stomach filled with air he would bloat more and the pain “just got greater and I didn’t know what was happening”.  He said the pain was in his stomach and associated with bloating, but was not the same as the pain he had before.   In addition, he had trouble with his bowels by way of constipation and diarrhoea.  He said he saw Dr MacNeil after the operation and:-

    “Q. Did you tell him about this problem?
    A. Yes, told him about the bloating and that, yes.

    Q. What about the constipation?
    A. I can’t recall if I said about that.  I just thought I would have troubles after the operation anyway.

    Q. What did you tell him about the bloating?
    A. I told him about it and he said that that was quite common after major surgery.  I was gulping air and he said that would go away with time.

    Q. Did it go away?
    A. No, it didn’t.”

15. Mr Bourke returned to work about the end of January 1985.  He said that although he was very sore he persisted for months, but working was getting harder and he changed to supervising because he was “just in too much pain”.   The change was said to have happened in June 1985.  He did not see a doctor until early November 1985.  He said the pain was caused by movement as the day went on and:-

    “I would just bloat more and first of a morning I wasn’t too bad and as it went on I just got that way I wasn’t able to do anything.”

    He said there was no particular body posture which affected him.  He gave evidence of speaking to Dr Fleming, having met him by chance at the supermarket, about three months after the operation.  He told Dr Fleming he was sore, and said that Dr Fleming asked whether he went back to work too early to which he replied that he probably did.  Dr Fleming, according to Mr Bourke, told him to go and see him if he got any worse.  He said he did not go to see Dr Fleming until the end of 1985 because he thought it was his own fault for going back to work too early, and that by the time he went to see Dr Fleming the bloating and the trouble with his bowel was just getting worse.  He also had nausea, which he did not have before the operation.  Dr Fleming referred him to Dr Childs and, thereafter, he took various medication, which did not help.

16. He made a claim on his disability insurance policy in July 1986.  At that stage he had “massive pain” in the stomach “from the bloating”, trouble with his bowels “not working” and nausea, all of which was getting worse “all the time”.

17. In 1987 he was referred to Royal North Shore Hospital, to which he was admitted on 1 June 1987 and, on or about 4 June 1987, he had an oesophageal motility test, and various other testings.  He returned to Royal North Shore Hospital on 17 August 1987 and came under the care of Professor Piper initially and then Dr Kellow, and was discharged on or about 24 August 1987.  He continued to see Dr Fleming and, in October 1987, he had a further gastric motility study at Royal North Shore Hospital after which he did not work again.

18. On 4 February 1988 he was re-admitted to that hospital and, at the suggestion of Dr Kellow, Dr Bambach operated on him.  The operation had no effect and, thereafter, he continued to be treated by Dr Fleming, but the medication did not help.  In May 1991 and April 1996 he saw Professor De Carle on behalf of Dr MacNeil.

19. Mr Bourke described collapsing in 1988 when he had pushed himself too far and the pain became too great.  He lost consciousness.

20. In cross-examination he denied that his condition was more severe before Dr MacNeil’s operation than he recalled and that he had forgotten symptoms he had before that operation.  He repeated that he had burning in the top part of his stomach and increasing pain in it, which were the only symptoms.  He said he had no problems with work because of those matters, nor any nausea, bloating or trouble with bowel movements.  He could recall no sleeping difficulties.

21. At Black Appeal Book pp.26-27 he gave the following evidence:-

    “Q. I suggest to you, you told the doctor who admitted you on 1 June 1987 that you had had many years of pain exacerbated by work or movement.  What do you say to that?
    A. Yes, many years was many of the years after the operation, which would be a couple of years or whatever it was.

    Q. So you say that the relationship of the pain to your work did not happen at all before the 1984 operation.  Do you say that or -
    A. That’s correct, yes.

    Q. Isn’t it the case that you had problems with your work due to your symptoms before the 1984 operation?
    A. No.”

    This evidence was inconsistent with the history he had given.

    He said he was sure about that and he did not recall telling the doctor on 1 June 1987 that he had vomited blood before his operation.  He volunteered that before Dr MacNeil’s operation he believed he had an ulcer because of the burning in the stomach, but he had no recollection of vomiting blood.  He attributed his problems to drinking alcohol from time to time.

22. He denied he told Dr Childs that he had flare-ups of pain about twice a week and episodes of pain, which did not simply follow drinking.  He denied he told Dr Childs on 29 October 1984 that he felt regularly bloated or that he felt “like being sick” or “like vomiting”.  He denied saying anything to Dr Childs about belching or that he had for many years suffered an embarrassing loss of bowel control.

23. He agreed Dr Childs could have started him taking Tagamet around the end of October 1984 and that he took it in accordance with instructions given to him right up to the operation on 10 December 1984.  He agreed he took it for several weeks and it did not help.  This is consistent with Dr Childs’ evidence that medication would not help.

24. At Black Appeal Book p.36 Mr Bourke agreed that his discomfort was getting worse and prolonged by the time he saw Dr MacNeil in 1984 and that when he was drinking it was getting worse, but he was still continuing to work.  He told Dr MacNeil that his symptoms had been making it difficult for him to continue working when he had them, the difficulty being that he was uncomfortable.  He agreed he told Dr MacNeil that the situation was making his life “in general” “miserable”, but he denied that his symptoms had got to the point where it was making it hard for him to turn up to work.  He denied saying to Dr MacNeil that various things at work made the pain bad, and that long days of stooping as a plasterer made the pain worse.  He agreed he had had no relief from Gaviscon or Tagamet.  He denied a feeling of bloating or nausea or loss of bowel control and:-

    “Q. I suggest to you that indeed in describing your symptoms after Dr MacNeil’s operation, you have subsequently said that you had the same symptoms before Dr MacNeil’s operation as you had afterwards?
    A. No.

    Q. I suggest that on 1 June 1987 you told the doctor at Royal North Shore who admitted you that the pain you were having at that time, June 1987, was the same as the pain that you had had prior to Dr MacNeil’s operation?
    A. No.

    Q. I suggest that you told Dr Fleming in November 1985 or at least before that, that you had the same symptoms then, that is November 1985, as you had had when you first saw Dr Fleming on 15 October 1984?
    A. As in the pain, yes.  When I say pain, when I am bloated I have got pain, before I got the pain when I drank.

    Q. You also had this bloating before?
    A. Not before.”

25. At this stage it had been put fairly to Mr Bourke that he was describing the same symptoms both pre- and post-operatively.  There was an abundance of evidence in the medical histories, which the doctors had taken, to support this view assuming that Mr Bourke had given an accurate history and the doctors had correctly recorded it.  No reason was suggested to the doctors why they would not do so, nor why the contemporaneous notes they took would not be accurate.  Mr Bourke’s evidence contradicted the correctness of those notes.  This raised an issue which, in my opinion, his Honour had to determine, namely why there was such a discrepancy between the history Mr Bourke had given to the doctors and his evidence.  This was an issue with which his Honour did not deal, other than saying that he accepted Mr Bourke as a witness of truth.  This finding, however, only highlighted the problem because if, as his Honour found, Mr Bourke was a witness of truth, the conclusion would follow that his history to the doctors would be truthful, or there would be some explanation why the doctors had an inaccurate history.  No case was sought to be made that Mr Bourke was a poor historian or could not, because of the effluxion of time, remember.

26. Mr Bourke agreed that no treatment he had ever been given provided any relief, although he agreed he was taking longer to get over problems after he had been drinking: Black Appeal Book p.40.  He said he was keen to get a tablet that would fix him.  It was put to Mr Bourke that Dr MacNeil did not tell him that he proposed to cut nerves in the operation in November 1984 and that he was confusing that with a subsequent operation, and he denied that he could have been wrong about the symptoms of which he complained.  He repeated that he was concerned about how the operation would impact on his work life and that Dr MacNeil told him that he would cut and tie off the nerves because his body was producing too much acid.  He added that Dr MacNeil said that after six weeks he would be “back at work completely normal”.  He denied that Dr MacNeil told him that by no means all patients got complete relief of symptoms, and that he was told various percentages or that some patients got a distension of their stomach.  He further denied that Dr MacNeil told him that if he had any doubt about the operation he should postpone it and try other non-surgical treatment.

27. At Black Appeal Book p.44 Mr Bourke said he returned to work in the early months of 1985 and carried out his former work for the first few weeks.

28. At Black Appeal Book p.45 Mr Bourke gave the following evidence:-

    “Q. I should have asked this before.  Sir, I suggest that the time you saw Dr MacNeil that you were so motivated, so highly motivated to get something done about your longstanding abdominal problems that you would have gone ahead with Dr MacNeil’s operation no matter what he told you about the various risks?
    A. Not if I thought I wouldn’t be working.  I would have tried anything else.

    Q. I understand your problem with the word ‘keen’ that I used before, but I suggest to you that you showed no reluctance whatsoever about having an operation done?
    A. When Dr MacNeil said I needed the operation, I spoke to my wife Denise and I said I must be worse than I thought I was.  It turned out it was right near Christmas, so if it had to be done, that was the perfect time to do it.

    Q. If you had been told that because of changes found in your oesophagus by Dr Childs’ endoscopy you had a much greater chance of getting cancer than normal people, you would have certainly accepted advice to go ahead with the operation, wouldn’t you?”

    This question was objected to and disallowed.  Mr Toomey submitted to his Honour that there had never been any such suggestion made and there was no material that that prospect motivated Dr MacNeil.  Mr Toomey further submitted that it changed the whole nature of the case.  Dr MacNeil in this Court challenged his Honour’s disallowance of this question.

217     Mr Murphy gave evidence that he met Mr Bourke about thirty years previously and worked with him for about two years in approximately 1967.  It appears that Mr Murphy did not see Mr Bourke again until his return to Wagga Wagga in December 1975, when he saw him on a social basis about once a fortnight until December 1984.  He did not work with him during that period nor see him on a work site.  He said that prior to the operation in December 1984 Mr Bourke complained once or twice about “his stomach, burning in the stomach” and said that after a few beers “he got burning, his stomach hurt”.  He said Mr Bourke did not complain to him about bloating prior to the operation and, after the operation, he visited him at his home and observed he was sick.  He said Mr Bourke complained to him about bloating in the stomach and being very sore.  These complaints make it the more difficult to accept that Mr Bourke did not see a doctor until November 1985.  Since 1984 Mr Murphy has seen Mr Bourke on a social basis about once a month and he said he observed bloating.  He was asked how long after the operation he did so and he said that it was hard to say but it was “probably a month, two months”.  This evidence was vague, no doubt because of the effluxion of a considerable period.

218     Mr Murphy said that Mr Bourke complained to him about his stomach and he observed that Mr Bourke was bloated on one particular occasion.

219     In cross-examination Mr Murphy said the operation could have been in 1983, 1984 or as late as 1985.  He said that he had not had to think about the events until about a month prior to 25 September 1997.  The passage of time obviously clouded his recall and once it was clear that he could not fix the year of the operation any relevant force from his evidence about complaints was removed.  On one view it may have strengthened Dr MacNeil’s position by showing that the complaints preceded the operation.

220     At Black Appeal Book p.219, Mr Murphy said that Mr Bourke complained of burning in his stomach after a few beers “from time to time”.  He could not recall when the complaints started nor whether it was as early as 1980 or 1982 or 1984 or 1986.  I have referred to the difficulties this caused.  He could not recall how long before the operation the complaints started and he was not sure whether it was a matter of months or years.  This was a point Dr MacNeil wished to make to defeat the suggestion of post-fundoplication syndrome.  He said the complaints were “any time we had a barbecue or anything like that he had a few beers so I suppose, frequently”.  However, he did not deny there were complaints before the operation.

221     Mr Murphy was unable to recall by reference to months how long after the operation Mr Bourke told him that he was having problems, although he said “that it wasn’t very long after”, and:-

“Q. Are you able to say how long after the operation he started complaining to you of problems of work?
A. It would be no more than three months, anyway.”

This evidence was inconsistent with that of Mr Bourke and his wife and with the case Mr Bourke was advancing.  It was, however, consistent with the view for which Dr MacNeil contended.

222     A reading of the evidence would not suggest that any great reliance could be placed on Mr Murphy’s recollection of times with the consequences to which I have referred.  However, his Honour used it, in part, in finding that Mr Bourke suffered “serious and incapacitating bloating from the immediate post-operative period onwards”.  In my respectful opinion, it did not establish this.

223     Mr Milward commenced working for Mr Bourke in about mid-1984, and he recalled his having an operation towards the end of that year and visiting him in hospital.  He said Mr Bourke was a hard worker who complained about getting “an acidy feeling here” indicating his chest, although that did not stop him working.

224     He said that when Mr Bourke returned after the operation “he was not his usual self”, which he described by saying that he would stop and start and stop and start, contrary to the way he had worked previously. Subsequently Mr Bourke said, from time to time, that he was “too crook to work”.  Mr Milward said that he observed that Mr Bourke was bloated.  Mr Milward said that to his observations as the months went on through 1985 Mr Bourke seemed to get worse, which continued.  This, to a not insignificant extent, was consistent with the view that the complaints came on later, once again showing an inconsistency with Mr Bourke’s case.

225     In re-examination Mr Milward said that he had tried to give evidence of the truth and what he could remember and:-

“It’s hard to remember back that long and the dates, and what type of things.  It is a long time ago”: Black Appeal Book p.305.

226     Mr Burgess commenced working with Mr Bourke around late 1983 and, prior to the operation, he said that Mr Bourke was a good worker, concreter and renderer and sometimes he got indigestion, which did not stop him working.  He remembered the operation was in early December 1984.  After the operation and when Mr Bourke returned to work, Mr Burgess noticed that he seemed to get tired, that “his belly was bloated up like wind or something was in there”, which he had not noticed before the operation.  He said Mr Bourke was unable to work as he had before and he saw the bloating very often. 

227     Although Mr Burgess could not remember that Mr Bourke’s business was not operating for several months in the first half of 1983, he denied that it was possible that his memory about things that took place in 1983, 1984 and 1985 was not clear because of the passage of time.  Mr Burgess also said that throughout the first few months of 1985, to his observation, Mr Bourke’s problems got worse and worse.

228     It was this evidence, as I understand it, coupled with that of Mr Bourke, which his Honour preferred to the contemporaneous notes of Drs MacNeil, Fleming and Childs, although his Honour did not place in the balance the histories given to other doctors and in the claim forms for disability insurance and Social Security.

229     It seems to me that the evidence of Mrs Bourke and Messrs Murphy, Milward and Burgess creates substantial problems for Mr Bourke’s case,  in so far as their evidence was that from shortly after the operation Mr Bourke was not merely inconvenienced, but was very unwell.  There is the difficulty in accepting that he dismissed his symptoms because he thought they were part of the normal post-operative sensations for the reasons to which I have referred.  In so far as his Honour said he believed that they “started to become a problem in about June of 1985” that is inconsistent with the lay evidence and Mr Bourke’s evidence.  On certain of their evidence the symptoms had become a problem soon after the operation.  On other parts of it the symptoms may have arisen before or some months after the operation.  Their evidence leaves completely unexplained why it was that Mr Bourke did not seek further medical treatment of any type until November 1985.  It seems to me that in so far as his Honour’s finding about the lay evidence depended to any substantial degree on his acceptance of the credibility of the witnesses, his Honour acted on evidence which, at the least, was “glaringly improbable”: Devries v Australian National Railways Commission (1993) 177 CLR 472 at p.479.

230     In my opinion the evidence can be characterised in that way because it is quite improbable that a person suffering to the degree that Mr Bourke was asserted to be suffering after an operation and in circumstances where he was fully aware of the source from which he could obtain medical treatment, failed to do so.  Further, the evidence is at odds with evidence which, in my opinion, was “incontrovertibly established”, viz the histories given by Mr Bourke to the various doctors.  I have pointed out that not only was there no effective challenge made to those histories, but also that they were not merely histories of non-complaint, but histories in which Mr Bourke allegedly stated, in a positive fashion, that he was very much better.  In addition to the histories there was his evidence of the claim made on his disability insurance, which is totally inconsistent with the evidence on which his Honour relied and to which his Honour appears to have paid no regard, save for noting that a claim was made, and the very strange history given to Dr Sharrock.  However, one may, at the least, divine from that history that Mr Bourke was placing any period of illness well beyond the period shortly after the operation.  In the light of all that evidence, it seems to me that his Honour’s reliance, for this is what it must have been, upon the credibility of Mr Bourke and the lay witnesses amounted not only to acting on evidence inconsistent with facts incontrovertibly established, but palpably misusing his advantage because of the failure to weigh the evidence with all the other evidence and the probabilities.  Even on his finding there was a period from June 1985 when the symptoms “started to become a problem” until November 1985, a period of some four to five months, before Mr Bourke sought treatment.

Conclusions

231     In my opinion, Mr Bourke has failed to establish that he was suffering from post-fundoplication syndrome.  I have reached this conclusion for the following reasons.  First, I am satisfied that he was suffering from the same symptoms before the operation as after it.  I have set out the histories in detail and the absence of any reason for not accepting that they record accurately what he told the doctors.  There is no finding, nor evidence on which such a finding could be made, that in those circumstances the same symptoms are referable to post-fundoplication syndrome.

232     Secondly, in so far as his Honour accepted Mr Bourke’s evidence he failed to balance it against the histories he gave the doctors.  If his Honour was satisfied that Mr Bourke was truthful, he must have been equally satisfied that he was giving the doctors correct histories.  Therefore, on his own case, he supplied evidence of the same symptoms pre- and post-operatively, of feeling well after the operation until about June 1985 and of not suffering any problems until about then.  The significance of this is two-fold:-

(a)the medical evidence was consistent that the condition of post-fundoplication syndrome comes on almost immediately after the operation; and

(b)this evidence was totally inconsistent with his evidence and that of his wife and friends that he was suffering severely from soon after the operation.

233     Thirdly, there is the inherent improbability that if he was suffering to the extent and in the manner he claimed from shortly after the operation he would not have sought medical advice until November 1985 and told the doctors he consulted that he was well until about June 1985.

234     Fourthly, Mr Bourke suffered a gastric motility disorder, which was present both before and after the operation.  That explained his symptoms consistently with their pre-operation and post-operation manifestations.  Dr Bambach operated to relieve that condition, which shows that it was not a minor matter.  There was evidence that a fundoplication could impact on an existing gastric motility problem, but Mr Bourke did not seek to make a case at trial that Dr MacNeil was negligent in carrying out the fundoplication without having regard to the gastric motility condition and, accordingly, the interaction of the two was never considered at an evidentiary level to determine whether that could constitute a head of negligence.

235     Fifthly, Dr Blaxland considered that the symptoms post-operatively were the result of a truncal vagotomy.  That was clearly wrong, but he went further and said that they were not consistent with post-fundoplication syndrome.

236     Sixthly, all the medical evidence, including that of Professor Piper to which his Honour made much reference, pointed to there being very real difficulty in carrying out an accurate diagnosis of the post-operative condition.

237     The conclusions to which I have come satisfy me that his Honour was in error in concluding that there was a causal connection between the operation and the post-operative condition.  In coming to my conclusion I am aware that, at least to a certain extent, I am rejecting his Honour’s findings as to the credibility of Mr Bourke and the lay witnesses called on his behalf.  However, so far as Mr Bourke is concerned, it seems to me that the admissions he made on a number of occasions and to a number of people as to his pre-operative and post-operative condition, together with the probabilities and the other matters to which I have referred are so powerful as to over-ride the advantage the learned trial Judge had of observing Mr Bourke, particularly in circumstances where his Honour made no finding that the matters recorded by the doctors to whom he referred were incorrectly recorded and no reference to the histories given to the Royal North Shore Hospital and Professor de Carle, and in support of the insurance and invalid pension claims.

238     So far as Mr Bourke’s wife and the other lay witnesses are concerned their evidence cannot be summarised by simply saying that it was “to the effect that the plaintiff suffered serious and incapacitating bloating from the immediate post-operative period onwards”.  I have dealt with it in some little detail and it does not support that finding.  Rather, as I have said, in many respects it is consistent with the view of the evidence for which Mr Sullivan contended.  In all these circumstances it seems to me that it is proper for this Court to give effect to its own conclusions as to the evidence: Voulis v Kozary & Anor (1975) 180 CLR 177 and State Rail Authority of New South Wales v Earthline Constructions Pty Limited(In Liquidation) (1999) 73 ALJR 306.

Other Issues Raised

239     In view of the conclusions to which I have come I find it unnecessary to deal with a number of other issues raised, but I shall note them.  On behalf of Dr MacNeil a submission was made that there was no causal connection between the failure to warn and the decision to have the operation.  It was further submitted on his behalf that his Honour was in error in disallowing the question to Mr Bourke as to how he would have reacted had he been told that he was suffering from Barrett’s oesophagus.   Mr Sullivan also submitted that the method of computation of damages was wrong.

240     Mr Toomey submitted, as I have noted, that the effect of the decision in Chappel v Hart is that  once it is found that the doctor has been negligent in failing to warn there is no room for the operation of the principle of the loss of chance, at least in the way in which his Honour applied it in the present case.  Accordingly, Mr Toomey submitted, his Honour was in error in making any deduction.  I am not certain that in Chappel v Hart the High Court was using the words “loss of chance” in that way, but it is unnecessary for me to further consider that point.  This submission by Mr Toomey gave rise to a submission by Mr Sullivan that as his Honour found that there was a sixty per cent chance that Mr Bourke would have to undergo the operation in any event, and as the evidence was that he was one of the small number of people susceptible to post-fundoplication syndrome, he would, in any event, have undergone the operation at some stage and suffered the same consequences.

Result

241     I propose the following orders:-

(1)The appeal by Dr MacNeil be allowed.

(2)In lieu of the orders made by Murray AJ set aside the judgment in favour of Mr Bourke in the sum of $358,608 and order judgment for Dr MacNeil in the proceedings.

(3)Mr Bourke’s appeal be dismissed.

(4)Mr Bourke pay Dr MacNeil’s costs of the proceedings at first instance, and of the appeals and have a certificate pursuant to the Suitors Fund Act if otherwise entitled.

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LAST UPDATED: 15/06/2000