Briant v Allan
[2001] QDC 330
•30 November 2001
DISTRICT COURT OF QUEENSLAND
CITATION:
Briant v. Allan & Anor [2001] QDC 330
PARTIES:
MELANIE BRIANT Plaintiff
And
JOHN ALLAN First Defendant
And
THE UNITING CHURCH IN AUSTRALIA PROPERTY
TRUST (Q) Second DefendantFILE NO/S:
DIVISION:
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
30 November 2001
DELIVERED AT:
Brisbane
HEARING DATE:
JUDGE:
Judge Forno Q.C.
ORDER:
I give judgment for the plaintiff against the first defendant in the total sum of $36,328.50. I will hear the parties as to costs.
CATCHWORDS:
Rogers v.Whittaker (1992) 175 CLR 479.
COUNSEL:
SOLICITORS:
This is an action by Melanie Joyce Briant for personal injuries on the claimed bases of medical negligence and/or breach of contract. Liability and quantum are in issue. The first defendant is Dr John Allen, who is and was at all relevant times, a specialist medical practitioner in the field of obstetrics and gynaecology. The action concerns that part of Dr Allan’s practice in which he provided artificial insemination procedures for women who wished to achieve pregnancy. Mrs Briant was a patient at relevant times of Dr Allan.
The second defendant has, I was informed, never been served and it is not necessary to consider the position of it in any sense. It is convenient simply therefore to refer to Dr Allan as the defendant.
The plaintiff’s amended plaint was filed on 18 April 1997 by her then solicitors. On 27 July 1999 she filed a notice of intention to act in person. She remained a litigant in person from then on including at the trial before me where she was given leave by me to be assisted at the bar table in the presentation of her case by her husband. The plaintiff conducted the trial intelligently, I should say with respect, and she seemed to have a reasonable grasp of the issues and the pertinent law.
Paragraph 4 of the amended plaint alleges that there was a contract formed between the plaintiff and the first defendant. Paragraph 17 alleges that it was an implied term of the contract that the defendant would take all reasonable and practicable skills, care, precautions and measures for the safety of the plaintiff while she was in his care as a patient.
Paragraph 18 alleges breach of that contract – particulars of the breach being stated to be in effect the same as the particulars of negligence given in paragraph 21 of the amended plaint which is also the paragraph alleging negligence.
The plaintiff did not refer in the trial to the law relating to contract and since she is unrepresented, I thought it fair to set out what I have above and to indicate that I think that it makes no difference to the question of whether or not she should succeed in the action, nor what the quantum of damages should be, whether she proceeds on the basis of contract or negligence.
The plaintiff clearly disavowed any reliance upon failure to warn as alleged in sub-paragraph (g) of paragraph 21. As she is a qualified nurse with some experience herself, as is her husband, she might be expected to have some appreciation of the requirements of the civil law in Australia dealing with such matters. Indeed, she made her own reference in address to the case of Rogers v.Whittaker (1992) 175 CLR 479 (the case which settled amongst other things the law in Australia in relation to what might be called the question of informed consent) and other relevant cases. Although Mr Williams referred to Rogers v. Whittaker in his written submissions, they were not provided to the plaintiff until the morning of addresses and the plaintiff clearly had prepared her own submissions, including the reference to Rogers v. Whittaker before then. The evidence in the case it seems to me, including evidence of a signed consent form referring to the transfer of pathogens via donor semen to be “minimised”, shows the plaintiff’s decision to abandon any reliance upon failure to warn to be appropriate, since such failure was alleged to be related to the said transfer of pathogens via donor semen. Also, it is relevant to note that the source of the plaintiff’s infection, herpes simplex virus type 1, is, according to the evidence, unlikely to be the donor semen and that was recognised by the plaintiff and it seems to be accepted by her. The second sub-paragraph (i) is also related to this. Also it appears clear that the responsibility of screening the semen did not lay with Dr Allan.
In these circumstances, the abandonment by the plaintiff of any action based on failure to warn and the failure of the plaintiff to press any allegation of infected sperm would appear to me to be well informed. If I thought to the contrary my duty to that unrepresented litigant would have been, I should think, to investigate her decision further. Also, it seems to me, to have been a sensible position for the plaintiff to adopt not to rely upon sub-paragraph (h) of paragraph 21 (failing to provide the plaintiff with opportunity to request Dr Allan wear gloves during insemination procedure).
The plaintiff’s case in the end result may be considered conveniently to be that at some time during the performance of a vaginal scan by Dr Allan on 2 June 1990, or insemination procedures on 3 and 4 June 1990, she was cross-infected from some other patient of Dr Allan with the herpes simplex virus type 1 and that that occurred by either
(a) transfer of infected material from Dr Allan’s un-gloved
hand to the plaintiff’s vagina; or
(b) by transfer of infected material from a vaginal ultra-sound probe or a vaginal speculum to the plaintiff’s vagina.
It was not part of the case that Dr Allan himself was a sufferer of the disease.
On each of 2, 3 and 4 June 1990 it is common ground that Dr Allan’s un-gloved left hand came in contact with the plaintiff’s vagina, although there was relevant dispute about whether or not the vaginal mucosa were touched.
On 2 June 1990 the instrument used was a vaginal ultra-sound probe and on 3 and 4 June 1990 the relevant instrument used was a vaginal speculum on each date.
It seems to me it was not seriously suggested by the plaintiff in the course of the case that the vaginal ultra-sound probe should remain in consideration as a possible offending instrument in the relevant sense. There was evidence by Dr Allan that a clean condom was placed over the end of that instrument before insertion and other evidence of that being in accordance with the usual proper procedure. None of that was challenged.
It seems to me also that in the light of Dr Allan’s evidence about instruments other than the speculum being contained in sterile packets at relevant times, the plaintiff did not seriously pursue those as possible infection carriers as well, and thus so far as instruments are concerned, it is appropriate I concentrate on the vaginal specula for the dates 3 and 4 June 1990.
It seems not be a matter of dispute that on each of the three days referred to above, the plaintiff was not the first patient seen by Dr Allan. The plaintiff claims in her statement, Exhibit 5, (evidence in chief being by statement in accordance with a previous order by Wilson DCJ) that :-
“Dr Allan had consulted between four and eight patients prior to me on all three days”.
According to the defendant, existing records would not assist as to the order patients were seen. Patients would simply turn up at the clinic without making an appointment, being unable to predict far ahead the occurrence of the appropriate position of their reproductive cycle.
Efforts were made by the plaintiff to obtain access to Dr Allan’s patient records for patients other than herself in what would seem to be a relevant course of enquiry. Such efforts are revealed to some extent in the file in documents relevant to an application by the plaintiff for orders requiring discovery of these and other documents. I note with regret in this connection that it is becoming more and more difficult to track the history of pre-trial directions and orders in civil trials generally, primarily because of lack of attention to proper endorsements. In this case I discovered on the file an affidavit which was sworn by a solicitor for the defendant and which O’Sullivan DCJ. gave leave to the defendant to read and file on the hearing of the aforementioned application. The fact that leave to read and file was given was not endorsed. I should say it had not escaped the attention of the plaintiff because she cross-examined Dr Allan on it during the course of the trial and so it was to some extent introduced into evidence in that way. It seems to me I can appropriately have regard to its contents. The affidavit deposes to the difficulty of identifying which patients, apart from the plaintiff, were seen by Dr Allan on 2, 3 and 4 June 1990 and in any case the impossibility of determining from those records, which of such patients were seen before the plaintiff. I note from the written submissions of defendant’s counsel on the occasion of the application before O’Sullivan DCJ. on 22 October 2001, which submissions are also in the file, that it was contended on behalf of the defendant in argument that the patient cards were not directly relevant to an issue on the pleadings, but would go only to credit, alternatively disclosure ought not to be ordered because of patient privacy amongst other things. The plaintiff’s application was dismissed, not I should think, on the basis of lack of relevance. That is because it seems to me to be clear that looking at the matter from the plaintiff’s perspective, documents revealing (if they did) a herpes virus type 1 sufferer examined by Dr Allan before the plaintiff on one or more of the relevant dates, would clearly be relevant. However, I hasten to add that I do not and should not cavill with O’Sullivan DCJ’s decision to dismiss the application which probably was on the other bases argued.
The position simply is that the plaintiff did all that she could be expected to do in this regard and the defendant chose not to rely on those documents. Speculation as to what is in them is not permissible and I do not engage in it. However, it appears that there did exist at one time other documents from which it could readily be ascertained who the patients were that were seen on 2, 3 and 4 June 1990. In cross-examination Dr Allan said (at p.154, line 50 trial transcript) :-
“…. we weren’t computerised at that time. What we kept were record books of the patients coming in and unfortunately those record books no longer exist.”
If those documents are different from the appointment books, Dr Allan did not explain what had happened to them and it is not clear whether he knew that or not. Had the plaintiff been legally represented something may have been made of what seems to be the fact that such documents had not previously been referred to including in the material to the application to O’Sullivan DCJ, and also importantly in the affidavit of documents sworn by Dr Allan on 22 March 1995. The affidavit of documents would of course have to make reference to these, even if they at that time no longer existed. Dr Allan at relevant times obviously regarded them to be relevant to the question of how the plaintiff contracted the disease because in cross-examination he said (page 153 of the transcript, line 52):-
“I received a phone call from the Nambour Hospital to state that you had contracted herpes vulvitis. My initial step was to ring my scientist and make sure that appropriate testing of the donor had been done. Clearly, the patients who I had seen in that period of time were very fresh in my memory and the next thing that I would have been concerned about was that if there had been any patients with active herpetic lesions. There were not. I am not recalling it from 1997, I’m recalling it from the time when I was informed that you’d contracted herpes at Nambour Hospital.”
The evidence continued:-
“Q: And that would have been on the …?
A:It’s recorded in my notes. I wrote – made a note there when I was informed that you’d contracted herpes, it’s in my written notes. The date I’m not sure of.
Q:It was on 16 June 1990. So on 16 June you rang your scientist. It’s documented that you phoned your scientist and that it is not documented that you took any other steps apart from ringing your scientist?
A:No, I mean, the concern at the Nambour Hospital was that you may have contracted the herpes from the donor insemination. So that is indeed what I looked at first, but clearly knowing the modes of transmission of herpes I was concerned that there may have been other patients either subsequent to you or before you who may have had herpes. There were none.”
I interpolate to say that I do not understand how Dr Allan could be so dogmatic in saying, as he seemed to say, that none of the patients had herpes. Surely all he could say was that to his knowledge none of them had herpes because there was no indication of that to him as there would be if a patient had observable active lesions on his examination. It seems to me that follows from the evidence about the nature of the disease itself which manifests itself periodically only and also it seems to me that is the explanation for the defendant’s pleading and the reiteration in the answers to interrogatories which became part of Exhibit 27, that the doctor had not on 2, 3 or 4 June prior to the procedure performed upon the plaintiff “performed any procedure on any patient who to my knowledge was suffering from herpes simplex virus occurring genitally”. I accept and find that the doctor did not perform any procedure on the plaintiff after performing any procedure on any patient that he knew to have the virus. It seems to me clear that any of those patients may have been sufferers of the herpes simplex virus type 1 without that coming to Dr Allan’s attention. Such patients may understandably not have revealed that they suffered from that condition. Dr DeAmbrosis, called by the defendant, gave evidence, which I accept, that there is a high incidence of HSV infection in his large fertility group and that such condition may not be brought to the practitioner’s attention by the patients for various reasons including embarrassment. One could reasonably expect the same to apply in Dr Allan’s practice. (See p.206 re-examination). There was further cross-examination of Dr Allan at page 174 of the transcript where it appears the plaintiff misconstrued what Dr Allan had said earlier in his evidence. Of course it is clear from the evidence as to the nature of the disease that a sufferer of it may be subject to active lesions breaking out from time to time with inactive periods in between. On my assessment of Dr Allan’s evidence he said he did not know that any of the patients treated on the same dates as the plaintiff were sufferers of the disease (indeed he, as I said earlier seemed to be dogmatic in saying there were none). It follows that his evidence is that he saw no active lesions on these dates and there were no patients to his knowledge seen on those dates who developed active lesions afterwards, ie., “around that time” (p.174 l.50). This it seems was in response to reports that in such circumstances of cross-infection per medium of health professionals “clusters” of patient infections sometimes resulted.
Dr Allan explained in evidence that when he was contacted by the Nambour Hospital about the plaintiff’s having contracted the disease, it was not necessary for him to have regard to appointment books or “record books of patients coming in”, but relied on his memory of the recent patients and also to confirm his memory he had regard to “protocols” in a folder of patients currently undergoing fertility treatment. It may be that the appointments books referred to in the affidavit of Watt earlier referred to are the same “record books of the patients coming in” referred to in Dr Allan’s evidence. Even so, such missing books are not referred to in any way in the affidavit of documents.
The assertion in Watt’s affidavit on information from the defendant that “often the visits by fertility clinic patients …. were not recorded in an appointment book” (my underlining), clearly infers that sometimes they were and that seems to be inconsistent with Dr Allan’s answer in cross-examination at page 183 line 56 of the trial transcript:-
“The patients would ring up and say that they were in a particular part of their cycle and the cards would be got out and put on my desk from the next morning. It wasn’t recorded in a book. Quite often a patient may ring at 5 o’clock in the afternoon and say ‘I’m going to be day 10 or 12 tomorrow’. Indeed, the booking book would have been a shambles.”
Dr Allan also referred to the patients writing their name down on a list which he had. This evidence was an explanation for his having an appropriate stack of files on his desk relating to the patients he expected to be coming in on a particular morning which presumably one of his staff had extracted and placed in a pile on the doctor’s desk. There had to be some notification from the various patients by the evening before that they were coming in and it is a little difficult to follow in the interim why that information would not have been put into an appointment book. Indeed, if patients wrote their names on a list as they arrived so that the doctor was able to take them in order of their arrival, which seems to be the effect of Dr Allan’s evidence, this list would reveal the order in which patients were seen by the doctor and in particular, whether, and if so which patients were seen before the plaintiff. This evidence of the doctor raises the question of why such a list or lists was or not referred to in discovery even if the patient/doctor privilege were claimed for it or an explanation given that such list or lists was or were no longer kept.
It seems to me that a medical practitioner in Dr Allan’s position would have been anxious to retain any documentation which would be likely to support what he now says in evidence. This is so, particularly since over a period of time the plaintiff has approached a number of agencies which have investigated the situation. Additionally, it would seem to me not to be unreasonable to expect that Dr Allan would have made some reference to such records as may bear upon the matter along with his note apparently on 16 June 1990, that after contact from the Nambour Hospital he phoned his scientist in connection with the check on the donor sperm.
It must be remembered of course that the plaintiff bears the onus of proving her case to the requisite standard of proof on the balance of probabilities. This is manifestly not a case where what occurred bespeaks negligence and so what is commonly referred to as the “doctrine” of res ipsa loquitur does not assist the plaintiff. She did not contend that it does.
It is not in issue that the plaintiff contracted genital herpes being viral type 1. It is admitted in the defence effectively that she was admitted to Nambour Hospital on 15 June 1990 with a diagnosis of a primary case of genital herpes, and the type of herpes was confirmed on 16 June 1990. It required significant treatment.
I find that the plaintiff suffered a primary attack of herpes simplex (viral type 1) which commenced about 7 June. That the attack was a primary attack is the opinion of Dr Whitby, called by the plaintiff, based on the severity of the symptoms. I was most impressed by Dr Whitby’s evidence. He is a specialist in infectious diseases which include herpes. It is most unlikely that this was a recurrence of symptoms. The mean incubation period is seven days. Dr Whitby gave evidence (page 234, line 17 of the trial transcript) that:-
“One would assume on balance that you were infected seven days before your symptoms occurred.”
I find therefore, rejecting any other scenario as being unlikely, that the plaintiff was infected with the virus at or about the time of the treatment by Dr Allan.
I have exercised circumspection concerning whether or not I should accept the plaintiff on critical issues because of what appear to me to be valid criticisms made by counsel for the defendant based on clear matters of evidence. For example, it is true that for a long time the plaintiff’s main allegation was that Dr Allan did not use a glove on his left hand. Her complaints enlarged over time effectively embracing expert opinion as it came in. I do not think that the plaintiff has set out deliberately to lie, but I am satisfied that her conviction that she was infected by Dr Allan has resulted in animosity towards him. There has resulted a tendency for her to see things favourably to her case and there has been historical distortion in her mind, perhaps helpfully fuelled by her husband.
I am not at all convinced that things were as bad in Dr Allan’s rooms as painted by Mr and Mrs Briant. Dr Allan enjoyed, and still does, a deservedly high reputation amongst his colleagues, and his staff, who gave evidence, spoke of his particular attention to hygiene. Some of these were previous patients of his.
I nevertheless accept the plaintiff’s evidence that she has not had a sexual partner since she met her husband in 1983, and also that she and her husband did not have sexual relations for at least 2 weeks prior to the treatment by Dr Allan. As to the latter assertion, she said that was because of an adverse reaction to the Clomid medication which is a precursor to the insemination procedure. The results of clinical testing of the plaintiff’s husband in evidence tended to exclude him as being the source of the infection in any event. It is necessary on the evidence, that contamination entered the plaintiff’s system in the vaginal area and the source of the contamination had to come into contact with that area. I am satisfied that all of what might be thought generally to be possible sources of contamination coming into contact with the vaginal area, apart from what was involved with the treatment by Dr Allan, has been excluded in the case of the plaintiff. It follows, and I find, on the balance of probabilities, that Mrs Briant was contaminated in the course of Dr Allan’s treatment.
I heard a great deal of evidence concerning the practice of parting the labia majora with thumb and forefinger in the course of the insemination procedure, the reason for it, whether it ought to be done with a gloved-hand and so on. I am quite convinced that Dr Allan’s finger and thumb in this procedure, whilst un-gloved, did not come into contact with the mucus membranes of the vagina. I am also convinced that in the absence of a lesion to the skin of the labia majora the infection would not pass from the hand of the practitioner even if the virus were present on the doctor’s hand, which itself is highly unlikely, in my view. I accept the doctor’s evidence about the washing of his hands between patients which would have been adequate to dislodge any virus. A procedure such as that I should think would become so routine for a responsible practitioner, such as Dr Allan is, that its absence is close to unimaginable. I reject the plaintiff’s evidence in these areas as being unreliable. I am of the view that she was not in a position to be able to see some of the things she claimed she saw.
It is not necessary for me in those circumstances to go on to consider the recommendations of any particular body and whether or not Dr Allan knew about them at relevant times, as desirable as those recommendations might generally be. That is so because it is not necessary for me to decide whether Dr Allan’s use of an un-gloved hand fell below the required standards so that it amounted to negligence. That act did not cause the damage and so ultimately it does not matter whether that amounted to negligence or not. I am not required to, nor should I pronounce upon all of Dr Allan’s procedures or actions involved with this case. My impression however is that generally Dr Allan’s procedures were appropriate. Evidence of unhygienic procedures generally, if convincing, could tend to support a conclusion that a particular act occurred which caused relevant damage and that negligence was involved with the performance of that act. However, as I have said in this case, such evidence does not have that effect at all. My reasoning for rejecting the sort of evidence referred to includes that if things were as bad as the plaintiff and her husband painted in June 1990 the Briants , having regard to their own position as qualified nurses, would be unlikely to have returned for further treatment in July and August as indeed Mrs Briant did.
What has concerned me in a careful consideration of this case is whether the specula had some role in introducing the infection into the plaintiff’s system. Having concluded that the infection of the plaintiff occurred at or about the time of Dr Allan’s procedures and having excluded Dr Allan himself as the source, it seems to me most likely that there was cross-infection from another patient. I took some pains at the start of these reasons to demonstrate that the plaintiff had done all that she could reasonably do to elicit material relevant to this question.
Dr Allan was adamant that the specula used on the plaintiff had been through the usual process of being placed in a bucket of sterilising solution, scrubbed and autoclaved. In adopting what really was a dogmatic approach to this, it must be said that he was relying upon the general procedure and appropriate steps having been taken by his staff. (see paragraphs 20 and 21 of Exhibit 29) It seems to me to be significant that Dr Allan at no stage gave evidence specifically that he obtained the speculum in question for use on the plaintiff on each relevant day from the drawer where they would be found if the procedure above had been carried out. This includes a passage commencing at p.190, l.5. It is clear that Dr Allan never performed the cleaning procedures on the specula himself. He did say he did not take the relevant specula from a trolley. This is in response to an earlier claim by the plaintiff that he had done so. If he had no trolley as he claimed, it seems reasonable to conclude that he was able to say that on the basis of there being no trolley, rather than on the basis of his remembering where he had taken it from.
Ultimately in evidence the plaintiff said she remembered he picked it up from a metal surface (see page 49). I do not treat the plaintiff’s husband as effectively providing support for that proposition because his evidence appeared to be contrived and was given in circumstances which make it obvious he had discussed the matter inappropriately with his wife during a break in the proceedings. The existence of a metal tray in connection with the specula, however, came out perhaps fortuitously for the plaintiff in the course of Mrs Walsh’s evidence. She was a person responsible for the cleaning procedure.
Mrs Walsh was employed by Dr Allan as a part-time typist and had various other duties. In her statement, Exhibit 32, she spoke of the general procedure which either she or another employee (who was not called), depending upon who was working, would follow. The cleaning duties she spoke of at paragraphs 5, 7, 8 and 9 of her statement could not have been performed by her on the days relevant to this case because those days were:- Saturday, 2 June 1990 (ultrasound) and Sunday, 3 June and Monday 4 June 1990 (insemination procedures with speculum) and I conclude that nobody whose duties included the cleaning of instruments worked on that weekend. That is the effect of Ms Walsh’s evidence at pp.212 and 214. The witness Kirkwood was vague about when ‘we’ ‘sometimes’ worked ‘Saturdays and then Sundays’, etc. Sutton (p.247) worked in 1988 and 1989 and there was no-one to clean when Dr Allan saw patients on weekends. Dr Allan saw patients on weekends. Dr Allan said at p.190 he ‘would have’ put any used speculum prior to seeing Mrs Briant in the bucket, but there would not have been a round of scrubbing and autoclaving by the time he saw Mrs Briant on those days..
It was relevant for the plaintiff to investigate how many specula there were available at the practice to get some idea of how many, if any, cleaned and sterilised specula may be available to the doctor in particular on Sunday or Monday morning, bearing in mind that patients in the category of Mrs Briant would come early and be seen in the very early part of the day from about 6 am to about 8 or 8.30, and on Monday morning there might be, according to the evidence, a number of patients waiting for the doctor before any of Dr Allan’s staff arrived. The autoclaving itself took a minimum of 30 minutes. The estimates of numbers of such patients on such mornings varied, but it seems reasonable to consider that there might be eight or ten, although Mrs Briant estimated a higher number. Some of those at least would require use of a speculum. Mrs Walsh gave evidence of sometimes cleaning two batches, or bucketfuls in a day. Overall it seems to me reasonable to conclude that there would be some accumulation of used specula over such a weekend. Mrs Walsh was extremely vague about the number of specula available and cleaned at any particular time (see page 216). She did say (see page 216, line 49) when asked:-
“Q: So how many speculums (sic) would there be before you would need to sterilise them so there would be more? Would it be – approximate ….”
“A: Probably half a dozen.”
Kirkwood said there ‘would have’ been two drawers of them but she didn’t know how many in each drawer; (p.242) and Dr Allan at p.186 gave a ‘rough estimate’ of 30. There is no evidence that as a matter of routine someone would ensure all of the specula were sterilised and available over the weekend. If the doctor started with a bucket of sterilising solution with no speculum in it early on Saturday morning, one might reasonably expect that it would be filled by Sunday morning and certainly by Monday morning. The doctor did not give evidence that he himself emptied the bucket or did any cleaning himself of the used specula.
There is some support for Mrs Briant’s evidence that when Dr Allan used a speculum on each occasion that he took it from a metal surface rather than from a drawer under the bed in that, according to Mrs Walsh there was a metal tray associated with the specula – see the bottom of page 222:-
“We put them on, like, a tray and then when they were cool enough to transport back into the room we did carry them with gloves into the room and put them in the drawer.
Q: On a tray?
A: I don’t recall that I’m afraid.
Q: Sorry, I thought you just said ….
A: Just depends how many there were.
Q:Yes, that’s what I mean if there was you know half a dozen six?
A: Yes.
Q:You couldn’t carry them all in your hands could you? You could drop one couldn’t you?
A: We didn’t drop any, no.
Q: So you had them in some sort of receptacle, you said a tray.
A: Yes, a tray on the top of the boiler.
Q: Would that have been the metal tray?
A: Yes.”
Having found, as I indicated earlier, that Mrs Briant was cross-infected from another patient in the course of Dr Allan’s treatment of her, it is essential that I consider whether it could be established how that occurred so that the question of negligence can be considered. In my view it is most likely that a speculum used on Mrs Briant was taken by Dr Allan from a metal tray rather than from the drawer. Specula in the drawer would most likely be sterilised. The same could not necessarily be said of a speculum taken from a metal tray.
It is not possible conclude how the relevant specula got onto the tray and to do so would engage in pure speculation.
However, given the conclusions I have already drawn, I hope legitimately by inference set out above, it must have been the case that one of the specula used on Mrs Briant had on its surface the herpes virus and that virus must have entered Mrs Briant’s system via a lesion in the mucosa. Such a lesion would not necessarily have been of the sort which, whenever it occurred, came to the notice of Mrs Briant, or indeed of Dr Allan. Such lesions can occur from the use of a tampon, according to Professor Jones and they might only be observable under a microscope. It can also be caused by a speculum, but less likely, having regard to the speculum’s comparatively smooth surface.
I accept Mrs Briant’s evidence that the speculum was put under running water by Dr Allan, although this was not his usual practice. The most probable scenario is that to Dr Allan’s knowledge the specula had not been through the rigorous sterilising process, used specula having accumulated over the Saturday and possibly also the Sunday, and pressed for time (patients were seen at about five minute intervals) Dr Allan adopted a process of cleaning which he no doubt hoped would be adequate, but regrettably was not. I regret to say such finding involves my rejecting Dr Allan’s evidence to the contrary. I do not believe Dr Allan was deliberately untruthful, but over a long period of pressure in connection with this matter and, no doubt, other commitments, he has probably tended to remember things in accordance with his usual good practice.
Based on Dr Whitby’s evidence and reports I conclude the virus can be present in mucus from an asymptomatic carrier, but more likely, in the case of cross-infection, from an active herpetic lesion which may be anywhere in the vagina the speculum came into contact with and not necessarily where it could be observed in the process of Dr Allan’s using it. Thus Dr Allan may have treated, and I find must have treated a sufferer of herpes without his knowledge. The virus can clearly survive for some hours in a film of mucus on a metal surface such as presents on each speculum. It seems to me that the conclusion is inevitable that such an infected speculum was used in the process on Mrs Briant.
For Dr Allan to do so it seems to me clearly amounted to negligence in the proper sense of that word in these cases. The accepted practice according to medical evidence is to deal with these instruments in the way they were usually dealt with in Dr Allan’s practice. To fail to deal with them in that way knowingly, and to adopt a lesser standard of cleaning as I find must have occurred, I conclude is to be negligent.
It follows that I find in favour of the plaintiff on the question of liability. I intend no disrespect in not referring any further than I have, or at all, to other witnesses in the case. I have referred to such parts of the evidence in these reasons as I thought necessary, but I have not overlooked the evidence of any witness.
About 7 June 1990 the plaintiff suffered vulval irritation which increased in severity until about 14 June when she experienced considerable pain in particular when passing urine. She saw her GP and received cream which did not give her relief. She was admitted late on 15 June to Nambour Hospital. A catheter was inserted and she was treated with narcotic analgesia acyclovir and bath salts. The Nambour Hospital was where she and her husband worked as nurses and she suffered embarrassment at being nursed for this particular complaint by her colleagues. She was discharged on 18 June physically improved, but emotionally very upset.
She attributes a miscarriage in 1991, when six weeks pregnant, to emotional instability arising from her herpes infection, but there is no qualified independent medical opinion to support that contention and I should not be satisfied that this event should be treated as part of compensable damage.
Adjustments were made to the couples sexual relations but those were of a minor nature, so far as damages are concerned.
Since her primary infection in early June 1990 the plaintiff has had recurrences of symptoms three to four times each year. They are usually mild to moderate and last eight to ten days each and she is familiar with the drug acyclovir and regards it, appropriately in my view, as an anti-viral drug to be taken during the more severe outbreaks. In 1996 and 1997 she suffered some outbreaks in this category and on 8 October 1997 she sought treatment for one of these and was prescribed acyclovir. She suffered a rash which she put down to an adverse reaction.
The plaintiff claimed in her statement, Exhibit 5, to have from February 1998 tried a reduction in her working hours with a consequent improvement in the frequency and severity of recurrent herpes. In September she said she permanently reduced her working hours to 24 hours per week and since then she has not experienced attacks as severe as previously and describes them as mild to moderate three to four times per year. This was the basis of an economic claim.
It became clear, however, in the course of cross-examination, that the plaintiff had claimed workers’ compensation for a back injury about 2 July 1989, that being in respect of what was claimed to be a permanent significant disability to her spine, thought to be career ending. Within a few months after having her benefits stopped she returned to her job doing the same work, or at least nursing related work. Exhibit 37 is documentary proof of these matters.
There was another claim in respect of an incident said to have aggravated a chronic back strain on 24 November 1991 and in 1997 she injured her left shoulder and made a claim for workers’ compensation in October 1998.
None of the above was revealed by her and did not emerge until she was cross-examined. This puts her in a very bad light so far as any economic claim is concerned. Additionally, her employer records show she did not have any time off work for the period of about 10 weeks prior to her attendance on a doctor in 1997 which was the most severe attack on her account. She attempted to explain some of these matters, in my view unconvincingly, in the course of her evidence.
The plaintiff clearly ceased work at the Nambour Hospital in February 2000 because she suffered from a disease unrelated to her herpes condition called Morton’s neuroma in both feet. She has had five operations for the condition since March 2000. This results in difficulty with being on her feet for long periods and that manifested itself during the trial.
I am not satisfied that past or future economic loss has been established. The award should be limited to past and future pain and suffering and inconvenience (which, I should have said earlier, should include the plaintiff’s concern over her belief she infected her husband and also what has now been shown to be an unfounded, but understandable fear of contracting cancer from the herpes condition) and special damages. I do not consider that she has been shown to have failed to mitigate her loss by unreasonably failing to investigate and take medications now available. There are no documented special damages.
So far as past pain, etc. is concerned, the condition has been described as of nuisance value only. It is nevertheless a nasty, embarrassing and upsetting condition which has persisted now for some 11.5 years and will persist so far as presently known, indefinitely, although with decreasing frequency. There is always the possibility of more effective treatment being developed in the future. Sexual relations can be expected to be disrupted during outbreaks of the disease. My findings in this regard are consistent with the report of Dr Keeping, called by the defendant.
The plaintiff was born on 29 June 1961 and so is presently 40 years of age. She is hopeful of becoming pregnant again. If that does occur and she has an attack of herpes at the end of pregnancy, a caesarean section could be mandatory.
Taking all of the above into account, I assess damages for past pain and suffering and inconvenience, inclusive of interest, at $18,000 and for the future, $15,000.
Although there is no documentation to support a special damages claim, it is reasonable to accept $150.00 per year in the past in relation to analgesia, creams and the like. I allow therefore, $1,725.00 for past medication, as well as interest thereon at 6% yielding $103.50. The occurrence of the need for such things can be expected to decrease as the rate of attacks decreases. I think it is reasonable in the circumstances to allow for the future an average of $100 per year for 25 years which, applying the 5% tables, provides for a present award in relation to that of $1,500.00.
I give judgment for the plaintiff against the first defendant in the total sum of $36,328.50. I will hear the parties as to costs.
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