Brown v Willington

[2001] ACTSC 100

AMANDA BROWN v CLARE WILLINGTON; FAMILY PLANNING ASSOCIATION ACT INCORPORATED; BILL MOURATIDIS; THE AUSTRALIAN CAPITAL TERRITORY AND SANJIV JAIN [2001] ACTSC 100 (24 October 2001)

CATCHWORDS

MEDICAL NEGLIGENCE – plaintiff with lumps and/or lumpy tissue in breast referred for to hospital for ultrasound and fine needle biopsy if indicated – whether attending physician negligent in failing to carry out proper physical examination and/or perform biopsy.
MEDICAL NEGLIGENCE – fine needle biopsy performed after subsequent ultrasound examination – whether pathologist negligent in examining slides of aspirate taken from nodule on plaintiff’s breast.
DAMAGES – plaintiff terminally ill – evidence that life may have been extended by prompt treatment - damages for loss of the chance of extended life span – suggested financial losses considered – principle that damages for loss of expectation of life should be modest distinguished.

Evidence Act 1995 (Cth), s 136
Law Reform (Miscellaneous Provisions) Act 1955, s 33, s 5

Rogers v Whittaker (1992) 175 CLR 479
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332
Naxarkis v Western General Hospital & Anor [1999] 162 ALR 540
Gavalas v Singh (unreported, Victorian Court of Appeal, 22 March 2001).
Hodges v Frost (1984) 53 ALR 373
Sturch v Willmott [1997] 2 Qd R 310
Sullivan v Gordon (1999) 47 NSWLR 319
Skelton v Collins (1966) 115 CLR 94
Haines v Bendall (1991) 172 CLR 60
Wise v Kaye& Anor [1962] 1 QB 638

No. SC 324 of 2001

Judge:            Crispin J
Supreme Court of the ACT
Date:              24 October 2001

IN THE SUPREME COURT OF THE  )
  )           No. SC 324 of 2001
AUSTRALIAN CAPITAL TERRITORY                )

BETWEEN:AMANDA BROWN

Plaintiff

CLARE WILLINGTON

First defendant

FAMILY PLANNING ASSOCIATION ACT INCORPORATED

Second defendant

BILL MOURATIDIS

Third defendant

THE AUSTRALIAN CAPITAL TERRITORY

Fourth defendant

and

SANJIV JAIN

Fifth defendant

REASONS FOR JUDGMENT

Judge:  Crispin J
Date:  24 October 2001
Place:  Canberra

1. This was an action for damages for negligence in the provision of medical diagnostic services as a consequence of which lobular carcinoma in the plaintiff’s left breast remained undetected.  It was alleged that, as a consequence, surgery and other medical treatment for the cancer was substantially delayed, the cancer was permitted to progress without medical intervention and the plaintiff lost the opportunity of recovery, or at least the opportunity of having her life extended for some further period.

1. The hearing was expedited because the plaintiff’s condition was terminal and it was feared that her death was imminent. This not only meant that the case might have had to have been decided without any evidence from her, but that the range of damages might have been severely curtailed by virtue of s 5 of the Law Reform (Miscellaneous Provisions) Act 1955.  That section provides that where a cause of action of this kind survives for the benefit of a deceased person’s estate, the damages recoverable may not include components for various matters including pain and suffering, loss of her ability to provide domestic services including, presumably, caring for her children and loss of future earnings.  Furthermore, she may have been denied the opportunity of knowing the outcome of the proceedings.

1. I was informed that the claims against the first and second defendants were to be withdrawn and the hearing was concerned only with the actions against the remaining defendants. 

1. The plaintiff was too ill to be brought to court and I heard her oral evidence during the late afternoon and early evening of Monday 17 September 2001 at her farmhouse near Yass in New South Wales.  The hearing resumed on Monday 24 September and concluded on the following Saturday evening when I ordered that there be judgment for the plaintiff against the third and fourth defendants in the amount of $223,143.60 and judgment for the fifth defendant.  Judgment was then duly entered.  It is now necessary for me to state my reasons.

1. In or about August 1995 the plaintiff noticed two lumps in her left breast.  She described one as being on the nipple, though in fact it appears to have been in the areola adjacent to the nipple, and one on the left side of the breast which appears to have been in the upper left quadrant.  Her husband, Mr David Brown, also saw them and felt them.  Mr Brown said that the lump on the areola was pea sized and that the other lump was a “flat disc type lump, firm, and roughly the shape of a twenty cent piece”.

1. On 10 August 1995 the plaintiff attended the Family Planning Clinic in Canberra where her breasts were examined both by a nurse, Nurse Kippen, and a medical practitioner, Dr Clare Willington.  The clinical notes of those examinations confirm that there was a pea sized lump in the areola of the plaintiff’s left breast and an area of what Dr Willington described as “firmer lumpier tissue” in the upper left quadrant of that breast.  Dr Willington referred the plaintiff to the Woden Valley Hospital for a mammogram, ultra sound scan and fine needle aspiration if indicated.

1. Perhaps understandably, Dr Willington had no independent recollection of the consultation.  However, the plaintiff said that Dr Willington had considered that she had blocked ducts and had said that the “masses” probably consisted of a cheese like substance related to breast feeding.

1. The plaintiff attended at the Woden Valley Hospital on 18 August 1995.  She was advised by a woman at the hospital, who may have been a nurse, a radiographer or other medical practitioner, that they could not do a mammogram because her breasts were too dense following breast feeding.  This statement seems to have been incorrect but a mammogram subsequently conducted in February 1996 proved negative and the error seems to have had no impact on the plaintiff’s condition.  Ultrasound scans of her breasts were undertaken on 18 August 1995 and she had a conversation with the third defendant who was a physician in nuclear medicine and diagnostic ultrasound.  She said he told her that since she was only thirty-five years old and there had been no history of breast cancer in the family there was no need to worry.  She had previously had cancer of the thyroid but said that when she mentioned this to the third defendant he had reassured her that there was nothing to worry about as it had been so long ago and so remote from the lumps in her breast.  He said that the lumps were most likely to have been fibrous and explained that they were in line with the ducts.  Most significantly, she said that whilst he read the ultrasound he did not feel or otherwise examine her breasts by palpation.

1. Mr Brown gave evidence that he had taken his wife to the hospital and had waited for her. He said that when she emerged from the room she had told him that the doctor had not examined her breasts or performed a mammogram. Ms Morrish QC who appeared for the defendants with Ms Gabriel objected to this evidence and, whilst I ultimately admitted it, I limited its use, pursuant to section 136 of the Evidence Act 1995 (Cth), to issues concerning Mr Brown’s state of mind.

1. The third defendant’s subsequent report of his observations included the following description:

   There is a cluster of mildly dilated lactiferous ducts lateral to the areola in the left breast.  The appearance of the ducts corresponds to the palpable findings.  No suspicious lesions were identified.  Medial to the left areola there is a mildly dilated lactiferous duct which is slightly thick walled.  This may be associated with possible low grade inflammation but in view of the lack of symptoms fine needle aspiration was not performed.  The remainder of the left breast and right breast appear normal apart from mild prominence of the lactiferous ducts.

2. The plaintiff gave evidence that she had telephoned Dr Willington on or about 31 August 1995 to say that she was still concerned about the lumps and that Dr Willington had told her that they were probably related to breastfeeding.  Dr Willington’s notes record the fact that she had a telephone conversation with the plaintiff concerning the breast lumps on 31 August 1995, but that it was her who had made the telephone call.  I accepted that the contemporaneous note was more likely to have been reliable than the plaintiff’s memory as an indication of who initiated the conversation, and that the plaintiff had been mistaken but the issue was of no significance.

1. On 7 December 1995 the plaintiff returned to the Family Planning Clinic.  She said that she had been concerned that the lump at the side of her breast had been getting bigger and that it had grown to what she described as “a large, hard mass with hard, jagged and non-collapsible edges”.  She had also noticed another small lump at the bottom of the nipple.  On this occasion she saw Dr Alexandra Tyson.

1. Dr Tyson’s notes of that consultation do not contain any specific reference to what Dr Willington had described as “firmer lumpier tissue” in the upper left quadrant of the plaintiff’s breast.  They refer to the review of a “breast lump” and the fact that the plaintiff had reported “mild tenderness, a new lump adjacent”.  They indicate that there had been no “nipply discharge” and that the plaintiff had seemed generally well.  On examination there had been a lump described as being “lateral central” of the left nipple, approximately 1.5 centimetres in diameter which was non-tender and another lump about 0.5 centimetres in diameter in the “central lower area of nipple” which was said to be probably a new ductal enlargement.  The notes of the consultation concluded “Repeat US +/-FNA”.  The abbreviation “U/S” referred to ultrasound whilst “FNA” referred to fine needle aspiration.

1. Dr Tyson also had no independent recollection of the consultation but it was clear that she had duly referred the plaintiff to the Woden Valley Hospital for another ultrasound.  The medical imaging request referred to left breast lumps “adjacent nipple” and added “lump identified 14/8/95 enlarged, 2nd lump adjacent.  General tenderness ESP upper region”.

1. The plaintiff returned to the hospital on 13 December 1995 when the further ultrasound was performed by a sonographer, Ms Karen Lindsay.

1. It is common ground that the third defendant then carried out a fine needle aspiration from the lump on the areola of the plaintiff’s left breast.  However the plaintiff claimed that he again failed to feel her breasts or carry out any other physical examination.

1. The plaintiff’s husband again accompanied her to the hospital and whilst he waited in the waiting room during the ultra sound he was invited into the room where the fine needle aspiration was performed.  He was concerned that his wife’s breast had not been examined and pointed out what he described as “dimpling tissue”.  He told the third defendant that it seemed very similar to the tissue on the breast of the woman in the Rembrandt portrait that had been displayed during breast cancer awareness campaigns.  He said that the third defendant had chuckled, conceded that he didn’t know much about art, told them that he was the expert and generally reassured them that there was nothing to worry about.

1. The plaintiff said that a woman with long dark hair examined the slides of the aspirated tissue and told them that it appeared to be “all clear” but that it would be re-read.  The woman to whom she referred was apparently Ms Janice Holdsworth, a senior technician with ACT Pathology.  The third defendant then told them to go home and enjoy their Christmas.  He added “don’t worry, it’s nothing”.

1. The third defendant’s report of this examination was in the following terms:

   “Thank you for referring this patient with palpable left breast lump.  There is a small subcutaneous nodule in the left breast situated in the 3 o’clock position along the areolar margin.  The appearances suggest a benign process such as lymph node or cyst and FNA was performed which yielded a small amount of clear fluid which was sent to cytology. 

   Breast parenchyma in both breasts is otherwise normal.  No suspicious features were noted.  Mammography is suggested to further exclude malignancy.”

2. The concerns of the plaintiff and her husband were relieved by these assurances.  However the lump got bigger and the plaintiff found that it felt “odd”.  Indeed, Mr Brown gave evidence that it increased most noticeably between December 1995 and February 1996.

1. The plaintiff consulted Dr Aiden Lawrence on 25 January 1996.  He examined her breasts and whilst he found no suspicious signs on the right breast, he found what he described as a “discrete, firm, mobile area” on the left breast.  He said that this area was hard and he measured it with a calliper as being approximately 3 x 4 centimetres in area.  The plaintiff told him that it had been growing.  He also found a nodule in the left areola which he thought may have been a sebaceous cyst.  He made arrangements for her to see a surgeon, Dr Dyason, as a matter of urgency.

1. Dr Lawrence saw her again on 1 February 1996 at which time he reviewed a mammogram and an ultra sound and ascertained that arrangements had been made for her to see Dr Dyason.

1. The plaintiff first saw Dr Dyason on 31 January 1996.  He found a diffuse lumpiness in the upper outer quadrant of the left breast and a solitary nodule in the areola which he said looked like an epidermoid cyst.  He arranged for her to have a further ultra sound and a mammogram of both breasts.

1. A report of those procedures dated 19 February 1996 suggested a diagnosis of fibroadanosis.  In his own report of 4 September 1996, Dr Dyason mentioned that fine needle aspiration cytology had been performed in December 1995 and that the report had been benign.  He concluded “clinically, radiologically and FNA pathology suggested a benign diagnosis of this left breast lump”.  Regrettably this opinion had been influenced by the mistaken assumption that the fine needle aspiration had been performed at the area of the lump or lumpiness in the left outer quadrant rather than on the nodule in the areola.  Whilst this mistake may have been understandable and none of the parties sought to criticise Dr Dyason, it plainly influenced the opinion he then formed.

1. In any event, the plaintiff returned to see Dr Lawrence on 20 February 1996.  She informed him that that she had seen Dr Dyason on the previous day and that he had told her that the lumpiness was likely to be “a benign process” of no concern.  Dr Lawrence was not convinced by this prognosis and rang Dr Dyason whilst the plaintiff was with him in order to express his concern.  Dr Dyason apparently adhered to his opinion but in view of the concern expressed by Dr Lawrence agreed to carry out an excision biopsy.  

26. The plaintiff saw Dr Lawrence again on 27 February 1996 when he found that what he described as the lesion had grown to approximately 4 x 5 centimetres and appeared to be deforming.

27. The excision biopsy was carried out on the following day.  The specimen cut out was described as an “ovoid mass measuring 41 x 32 x 19 millimetres” which was “firm to hard” with a particularly hard central area.  The sections showed “extensive involvement of most of the breast lump by multifocal invasive lobular carcinoma.  This [was] associated with extensive areas of lobular carcinoma in situ”.

28. Dr Dyason advised modified radical mastectomy which was carried out at Calvary Hospital on 7 March 1996.

29. Regrettably, neither this surgery nor any of the treatment that followed proved sufficient to arrest the development of the cancer.  The plaintiff’s condition gradually deteriorated and by the time of the hearing it was common ground that death was inevitable.

The case against the third defendant

30. The plaintiff had pleaded a cause of action for breach of contract against the third defendant.  However, no contract between him and the plaintiff was established.  The evidence revealed that he had been employed by the fourth defendant as a staff specialist at the Woden Valley Hospital.  Accounts were issued in his name when patients were referred to the hospital for procedures but were not admitted as in-patients.  Medicare then paid the account but the money was reimbursed to the hospital.  It seemed clear that any contract for the provision of medical services had been between the plaintiff and the fourth rather than the third defendant.  Consequently, it quickly became apparent that this claim could not be sustained.

31. However, I found the claim for a cause of action for negligence established.  Whilst I had no reason to doubt that the third defendant was otherwise a responsible and conscientious medical practitioner, I was satisfied that he had failed to carry out a proper or adequate examination of the plaintiff’s left breast in August and December 1995.  I was also satisfied that if he had done so he would have found a lump, or at least a discrete area of firm lumpy tissue in the upper left quadrant, and that he would, or should, have then performed a fine needle aspiration on that area.  I found that if such a procedure had been properly performed it would probably have revealed the presence of lobular carcinoma and treatment for that condition would have been provided much earlier that it was.

32. Both the plaintiff and her husband impressed me as credible and reliable witnesses.  The plaintiff had previously suffered from thyroid cancer and it was entirely understandable that both she and her husband would have been concerned about the discovery of lumps in her breast.  Whilst I did not take into account evidence of what she had told her husband after the ultrasound examination in August 1995, I accepted her evidence as to what had occurred on that occasion.  Similarly, I accepted her evidence and that of her husband as to what occurred during and immediately after the ultrasound examination in December 1995.

33. Even in the absence of any supporting evidence, I would have been satisfied to the requisite standard of the accuracy of Mr Brown’s evidence that the both the lump in the areola and the lump in the upper left quadrant of the breast remained in situ throughout the period of approximately seven months between the time that he and his wife noticed them, and the time of the excision of the latter lump on 23 February 1996.  His evidence as to the continued presence of the lump in the upper left quadrant was, however, generally consistent with the observations Dr Willington made on 14 August 1995 of an area of “firmer, lumpier tissue” in that area, Dr Lawrence’s observations on 25 January and 20 February 1996 of a large lesion in that area and the excision on 28 February 1996 of a large ovoid mass from that area.

1. It was true, as Ms Morrish pointed out, that a medical practitioner might draw a distinction between “lumps” and “lumpiness” and that Dr Willington’s description should not have been taken to have confirmed the presence of a lump as described by Mr Brown.  However, the sketch indicated that the lumpiness had itself been in a discrete area rather than spread diffusely over the upper portion of the breast.  Furthermore, that was the area in which the plaintiff and her husband discerned a lump, Dr Lawrence subsequently found and measured a lesion and from which a mass was ultimately excised.  It was also true that Dr Tyson’s notes did not include any reference to such a lump but that omission did not, of course, prove that it had not been present.

1. Having listened carefully to the evidence of the third defendant, for whom the consultations were but two amongst many, I formed the impression that he had little actual memory of the examinations and that he had attempted to reconstruct what might have occurred substantially by reference to ultra sound scan photographs taken on those occasions.  He had become aware of the allegations of negligence only when served with initiating process earlier this year, and more than five years had then elapsed since each of the examinations.  Whilst her evidence added little to the impression I had already formed, Ms Holdsworth, the senior technical officer who examined the slides of aspirated tissue in December 1995, said that when she saw the third defendant in June this year he had “asked me for my memories of what happened because I don’t think he particularly remembered the patient”.  I am sure he did his best to recall and/or reconstruct what had occurred but his I found at least some aspects of his evidence unconvincing.

1. There had been a a typographical error in his report of the first consultation on 14 August 1995 in that the mildly dilated lactiferous duct referred to as being on the left breast had actually been on the right breast.  Mr Purnell submitted that this error itself reflected a negligent approach to his duties but the issue appeared to be of little, if any, importance, because the error plainly had no effect on the plaintiff’s treatment.

1. The third defendant maintained that on that occasion there had been a cluster of mildly dilated ducts “lateral to the areola” in the left breast and that he had not done a fine needle aspiration because “clinically there was no discrete lump”.  I was unable to accept this assertion.  On the contrary, I accepted the evidence of the plaintiff and her husband that there had been a discrete lump, that it was within the areola and that it was in the “three o’clock” position in relation to the nipple.  Furthermore, Dr Willington had noted the presence of a pea sized lump in that position on 10 August 1995 and Professor Langlands, a distinguished oncologist who gave evidence for the defendants, agreed that “it defies belief” that such a lump would have disappeared in only four days.

1. When he examined the plaintiff again on 13 December 1995 the third defendant himself found a “small subcutaneous nodule in the left breast situated in the three o’clock position along the areolar margin”.  He sought to explain that whilst Dr Tyson had assumed that it was the same lump which had simply grown larger, what Dr Willington had described as a pea sized lump had actually been a cluster of mildly dilated ducts, that this had disappeared between the examinations in August and December 1995 and that a fresh nodule had emerged in substantially the same place during that intervening period.

1. Some attempt was made to support this contention by reference to still photographs of ultra sound scans taken at the time of the successive examinations.  However, it was clear that scans of that nature frequently fail to pick up the presence of lobular carcinoma.  Indeed, an ultra sound performed on 19 February 1996 had failed to detect the presence of the large mass in the upper left quadrant of the plaintiff’s left breast.  Accordingly, whilst I accepted that the presence of neither a pea sized lump nor a mass in the upper left quadrant had been revealed by the relevant ultra sound scan photograph, that fact did not prove that they had not been present.

1. The sonographer, Ms Lindsay, who was called to give evidence on behalf of the defendants proved to have no actual recollection of the plaintiff and her evidence was limited to matters of normal procedure.  Ms Holdsworth was also unable to give any evidence on this issue.

1. Despite the third defendant’s contentions and the limited support they derived from the photographs, I was satisfied that neither the lump on the areola nor a mass, or at least a discrete area of “firmer, lumpier tissue”, in the upper left quadrant had ever disappeared during the relevant period.  I think it is most likely that he saw the lump in the left areola but assumed that it had been caused by a cluster of dilated lactiferous ducts and that fine needle aspiration was therefore unnecessary.

1. I also accepted the plaintiff’s evidence that the third defendant had not examined her breasts with palpation on either occasion.

1. As Ms Morrish emphasised, it would have been inappropriate to judge the manner in which the third defendant discharged his professional duties by reference to facts and circumstances which became clear only in hindsight or, as one expert witness put it, by looking through a “retrospectoscope”.  Nonetheless, I was satisfied that his failure to examine her breasts in this manner involved a significant departure from the standard of care that might properly have been expected from a competent medical specialist in the circumstances established by the evidence.

1. Professor Levi, who gave evidence on behalf of the defendants, agreed that the area of firmer lumpier tissue identified by Dr Willington would have been the most suspicious area and that on the balance of probabilities it had been “clinically available from August [1995] through to the end of February [1996]”.  He also agreed that if the lumpiness had been there as described it was highly unlikely that a clinician competently carrying out his or her duties could not have found it during that period.  It was also significant that the area of lumpiness had been seen and felt by the plaintiff and her husband, and observed and described by Dr Willington prior to the first meeting with the third defendant.

1. Yet in his report of the August 1995 consultation, the third defendant mentioned only a mildly dilated lactiferous duct medial to the left areola and said that the remainder of both breasts had appeared normal apart from mild prominence of the lactiferous ducts.  There was no suggestion that he had detected the presence of either a discrete area of lumpiness or a lump.

1. Even after the consultation in December, the third defendant’s report, whilst identifying a small subcutaneous nodule said to have been along the areolar margin, stated that breast parenchyma in both breasts had been “otherwise normal” and that no suspicious features had been noted.

1. The report did not contain any suggestion that he had noted a lump, lumpiness or other abnormality in the upper left quadrant, considered its possible aetiology and concluded that it was merely the manifestation of a benign condition.  On the contrary, it asserted that the breast parenchyma had been normal.  That was plainly incorrect.

1. I was satisfied that a significant abnormality had been present in the left upper quadrant of the breast in both August and December 1995, and that it would have been discerned by the third defendant on either occasion if he had carried out an appropriate examination with due palpation of the breast.  I was also satisfied that on both occasions he had failed to do so even though his attention had been drawn to the potential abnormality by the terms of the referral from Dr Willington in August and by Mr Brown’s comments in December.  I concluded that his failure to do so had amounted, in each case, to a breach of the standard of care that he owed to the plaintiff.

1. The evidence established, in my view, that a reasonable standard of care on the part of a person in the position of the third defendant would have involved the application of the so called “triple test” for any lump in the breast at least in the absence of any obviously benign explanation.  The triple test consisted of a clinical examination, imaging by mammography or ultrasound, and fine needle aspiration or biopsy.  I was satisfied that this standard required a person in the position of the third defendant to apply the triple test to both ‘lumps’ and not merely the one in the areola.  I was also satisfied on the evidence that the lump or area of lumpiness in the left upper quadrant should have been regarded as the more suspicious of the two lumps.  Consequently, I concluded that the third defendant would probably have carried out a fine needle aspiration on this lump or discrete area of lumpiness if he had discovered it, as he should have done, in August and/or December 1995, and that any failure to have performed such a procedure would have amounted to a further breach of the standard of care that he owed to the plaintiff.

1. I accepted that lobular carcinoma may be spread in a diffuse but somewhat irregular pattern throughout the breast tissue and that, as Professor Langlands pointed out, there may have been some doubt about whether malignant cells would have been detected by a fine needle aspiration.  However, it was customary to make several “passes” with the needle so that the aspirate was collected from different portions of the relevant area.  In all of the circumstances I was satisfied on the balance of probabilities that, if the third defendant had identified the lump in the upper left quadrant in August 1995 and conducted multiple passes in that area, the carcinoma would have been discovered and appropriate medical intervention promptly undertaken.

1. The plaintiff plainly suffered at least some further injury as a consequence of the delay.  The mass in her left breast was permitted to grow unimpeded for the additional period between the time when it might have been excised had it been discovered and the time of its excision in March 1996, and she lost the benefit of any treatment that may have been prescribed during that period.

The case against the fourth defendant

1. The fourth defendant conceded that it had employed the third defendant as a staff specialist at the Woden Valley Hospital, and it was clear that he had seen the plaintiff in that capacity.  Consequently, the fourth defendant was vicariously liable for the breach of the duty of care to the plaintiff which the third defendant had undertaken on its behalf.

The case against the fifth defendant

1. The case against the fifth defendant was based substantially upon the contention that a proper examination of the slides of the aspirate taken from the nodule in the areola of the plaintiff’s left breast would have revealed the presence of malignant cells or, at the very least, would have given rise to sufficient doubt as to their presence to have warranted further investigation.  In my view neither proposition was ultimately established.

1. Mr Purnell relied heavily upon the terms of a conversation between the fifth defendant and Dr Lawrence in February 1996 in which the former had allegedly admitted that his slides revealed the presence of lobular carcinoma. Dr Lawrence said that he had rung the fifth defendant to discuss the slides and that the fifth defendant had actually reviewed them whilst he was still on the telephone.  In the ensuing conversation the fifth defendant used the term “tumour cells”, though Dr Lawrence fairly conceded that he had been unable to recall the precise context or the sentence in which it was used.  However, he did make a contemporaneous record of the exact words used by the fifth defendant in a subsequent statement, namely: “In retrospect, what were reported as macrophages are adenocarcinoma cells”.  Mr Purnell submitted that this statement involved a clear admission that the fifth defendant had initially failed to recognise what it was in fact evident from the slides.

1. Whilst, understandably enough, the fifth defendant had no actual recollection of that conversation he did not deny the possibility that it may have occurred.  Dr Lawrence was obviously a truthful witness and I had no doubt that there was a conversation of the kind he described.  At face value, therefore, the statement did seem to involve a significant admission.

1. However, any statement must be considered in context and, after the passage of more than five years, it was obviously impossible for Dr Lawrence to remember the precise context in which the words attributed to the fifth defendant had been spoken.  Furthermore, whilst the fifth defendant was obviously an intelligent and well educated medical specialist, he displayed a tendency to respond to questions with broad explanations or comments of sometimes peripheral relevance rather than with precisely responsive answers.  He gave sworn evidence that the slides did not reveal any malignant cells and in view of this evidence it was necessary to consider the possibility that in making the statement he may not have intended to convey the meaning which Mr Purnell sought to attribute to it.  As with other issues in the case, this possibility was considered in the context of other relevant evidence.

57. The fifth defendant explained that cytologists form their opinions substantially by reference to the pattern of cells rather than reliance upon the shape of individual cells.  He described macrophages as “scavenger” cells that consume dead cells within the body and said that they appear as nuclei surrounded by “bubbly” cytoplasm.  Lobular carcinoma cells also consist of nuclei and adjacent cytoplasm.  Visually, the difference appears to lie in the fact that malignant cells tend to have a higher nuclear-cytoplasmic ratio.  In other words, the nucleus of a malignant cell is larger in comparison to the cytoplasm than might be expected in the case of a macrophage.  However individual cells, whether malignant or benign, vary in shape and it is not always possible for even a competent and experienced cytologist to determine whether an individual cell falls into one category or another.  For this reason there is apparently an axiom among cytologists that “you judge cells by the company they keep”, and opinions are formed on the basis of patterns of cells.

58. The fifth defendant conceded that, having reviewed the slides in the knowledge that lobular carcinoma had been found in the plaintiff’s left breast, he had identified some cells that may have been lobular carcinoma.  He said, however, that even with the benefit of hindsight there was nothing evident in the slides to confirm that the cells had actually been malignant.

59. He agreed with a suggestion put to him in cross-examination that “others” had found cancer on the slides, but those who had apparently done so were not called to give evidence or even identified and I attached no weight to this evidence.

60. However, there was a report by Dr Orell who was apparently an eminent expert in this area and one of the authors of a book “Manual and Atlas of Fine Needle Aspiration Cytology” which was tendered in evidence.  Dr Orell had reviewed the same slides and in his report of 31 August 2001, which had been admitted without objection, stated that the lymphohistiocytic proliferation had been “cytologically benign” and that malignant cells had clearly not been found.  Dr Orell was not asked to attend for cross-examination as to the accuracy of this assertion.

61. In the light of this evidence and the fifth defendant’s tendency to respond to questions in a discursive manner, I formed the impression that, in making the statement referred to by Dr Lawrence, he may have been intending to concede only the possibility that what had been reported as macrophages had been adenocarcinoma cells or even restating the proposition he thought he was being asked to consider.

62. In any event, having considered all of the evidence on this issue I was not satisfied that the fifth defendant had been negligent in failing to discern the presence of such cells from the slides.

63. Mr Purnell also submitted that even if the slides had not revealed the presence of malignant cells the mere fact that their presence had not been excluded should have prompted the fifth defendant to suggest excision of the relevant lump.  This argument was superficially attractive. 

64. However, I was not satisfied that the appropriate standard of care would have required the provision of such advice in any case in which a cytologist could not have excluded the possibility that even a single cell might possibly have been malignant.  Nor was I satisfied that the presentation of the cells on these slides was such that by failing to make such a recommendation the fifth defendant had breached such a standard.

65. In Rogers v Whittaker (1992) 175 CLR 479 the High Court of Australia held that the mere fact that a body of reputable medical practitioners would have acted as the defendant did in the providing advice or failing to warn did not preclude a finding of negligence. In that case Mason CJ, Brennan, Dawson, Toohey and McHugh JJ said at 489:

Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order.  Generally speaking, it is not a question the answer to which depends upon medical standards or practices.

1. In the present case, the fifth defendant was not engaged to directly advise the plaintiff.  His task was to examine the slides and report his findings to the third defendant and/or the plaintiff’s general practitioner.  I was satisfied that a reasonable standard of care would have required him to report not only any positive identification of malignant cells but any significant ground for suspicion as to the presence of such cells.

2. However, fine needle aspiration is not 100 per cent accurate.  It was introduced as a compromise between the stark alternatives of leaving a suspicious lump in situ and letting nature take its course; or cutting it out and accepting the certainty of scarring and/or disfigurement which might prove to have been unnecessary.  Whilst accuracy rates have improved over the years as cytologists have gained in experience and expertise, the evidence did not establish that it was always possible to discern the presence of malignant cells or even identify the risk that a particular cell or cells might be malignant.  As previously mentioned, cytologists form their opinions on the basis of the patterns of the cells.  It is not always possible to tell whether individual cells are benign or malignant, and the mere fact that the appearance of a particular cell may have been consistent with that of a carcinoma does not, of itself, warrant the conclusion that a cytologist should have seen it as providing significant grounds for suspicion.  In the present case the evidence did not prove either that the patterns of cells suggested the presence of carcinoma, or that a competent cytologist should have ensured that no individual cell could possibly have been malignant.  Furthermore, it did not establish that either Dr Tyson or the third defendant was unaware of the risk of what were described as “false negatives” or that the appearance of the cells was such that the fifth defendant should have identified some particular risk and warned them of it.

68. As Mr Purnell pointed out, Dr Orell’s report not only confirmed that malignant cells had not been found, but stated that “in the absence of a confident diagnosis local excision is recommended if there is any clinical concern”.  The term “clinical concern” presumably referred to concern on the part of a clinician who had examined the relevant area of the breast and there was no evidence that the third defendant had had such a concern.

69. In any event, I was not satisfied that any qualification to the fifth defendant’s report warning of the mere possibility of undetected malignant cells would have prompted either the third defendant or Dr Tyson to have recommended excision of the nodule on the plaintiff’s areola.  Nor was I satisfied that malignant cells would have been found in that nodule had it been excised at that time.

70. In short, I was not satisfied that the fifth defendant had been guilty of a breach of the duty of care that he owed to the plaintiff, or that any warning warranted by the appearance of the slides would have led to the provision of more timely treatment.

71. Accordingly, I directed that there be judgment in favour of the fifth defendant.

Damages

1. The assessment of damages involved profound difficulties.  The plaintiff already had the cancer when she saw the third defendant in August 1995 and it was probably already incurable.  However, I was prepared to infer that if the carcinoma been discovered by cytological examination of slides of a fine needle aspiration performed on 13 August 1995 appropriate treatment would have followed promptly.  Ms Morrish did not contend to the contrary.  Counsel for the plaintiff argued that the timely provision of treatment would have been likely to have arrested, or at least slowed, the development of the carcinoma and given her a substantial chance of living for a significantly longer period and an, albeit small, chance of surviving for a normal life span.

1. It is now clear that a plaintiff may obtain damages for the loss of a chance that a benefit may have been obtained or that a detriment may have been avoided, and this principle applies to claims both in contract and tort.  See, for example, Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL & Ors (1994) 179 CLR 332; Naxarkis v Western General Hospital & Anor [1999] 162 ALR 540; and Gavalas v Singh (unreported, Victorian Court of Appeal, 22 March 2001).

2. Professor Tattersall expressed the view that if the cancer had been diagnosed in August 1995 and treated promptly the plaintiff would have had a 40 to 50 per cent chance of living for a period of ten years, at least a 20 per cent chance of living for twenty years and a “real possibility” that she would have lived for as long as fifty years.

3. For present purposes it is unnecessary to refer to all of the evidence he gave concerning the lobular carcinoma and other forms of breast cancer.  His opinions as to the plaintiff’s chances of survival were based substantially on the likely lymph gland involvement in August 1995 and information relating to survival rates obtained from published research.  He explained that cancer has the potential to spread locally and also via the lymphatics or the bloodstream.  The extent to which the cancer has spread to lymph nodes or glands provided an indication of the probability of the disease having spread further afield, and of the probability of it being controlled by local treatment, whether surgery or otherwise.  Those patients who had less than ten lymph glands involved had better prospects of long term survival than those with a greater number, and those with less than four involved had even better prospects.  He thought that the carcinoma in the plaintiff’s left breast would have spread to the extent that there would have been some lymph gland involvement even in August 1995, but expressed the opinion that there would probably have been less than ten glands involved, and possibly less than four.

4. Dr Sullivan, who was also an oncologist with special experience in relation to breast cancer, agreed with Professor Tattersall’s opinions. Both were very impressive witnesses and I ultimately accepted their evidence on these issues.

5. Dr Lawrence said that he found the opinions expressed by Professor Tattersall and Dr Sullivan “clinically very plausible and convincing”.  Ms Morrish objected to any expert evidence on this topic from Dr Lawrence, maintaining that as a general practitioner he had not been qualified to express opinions of this nature.  Whilst I ultimately concluded that the issue fell sufficiently within his area of expertise and that his opinion was admissible, it added little if any weight to the opinions expressed by Professor Tattersall and Dr Sullivan and I placed no reliance upon it.

78. The defendant called a number of experts who gave evidence to the effect that the opinions expressed by Professor Tattersall and Dr Sullivan, had been unduly optimistic.

79. Professor Langlands disagreed with Professor Tattersall’s view that no more than ten lymph nodes would have been involved, though he had conceded in his report that the number of involved lymph nodes would probably have been less than that found in March 1996.  In his opinion diagnosis and treatment at that time would not have had any “profound effect” on prognosis.  Indeed, he said “in terms of outcome, disease of this extent is incurable with a five year survival expectation of around 40 per cent, no different from that when treatment was eventually given”.

80. Like Professor Tattersall, Professor Langlands was a well-qualified and eminent medical expert.  However there were a number of matters which led me to have some reservations about the weight that should be given to his opinions.  His evidence was garnished with some emphatic and unequivocal statements that seemed somewhat incongruous, given the nature of the issues he had been asked to address, and discordant with the cautious approach taken by the other medical experts in relation to the same issues.  He differed from the other specialists in maintaining that the number of lymph nodes affected by the cancer “doesn’t matter terribly”, though he had previously said that the plaintiff had had one of the most advanced carcinomas he had ever seen “in terms of the extent of lymph node disease”.  He did concede that if four or less of the lymph nodes had been involved the tumour would have had a better outlook “on paper”, and agreed with Professor Levi that axillary lymph node involvement is indicative of progression and extension of malignancy.  However, he suggested that Professor Tattersall could not “have his cake and eat it” and explained that if there had been less than ten lymph nodes involved in August 1995 then the fact that thirty-four were involved only seven months later revealed a “volcanic eruption of cancer”.  He said that the cancer was growing at a “phenomenal rate” or “like wildfire” and that that growth was an expression of the biology of the tumour.  He maintained that the cancer would have continued to behave “exactly like that” had a mastectomy had been done in August.

81. Professor Langlands said that he and Professor Tattersall were good friends as well as colleagues, and agreed that he respected and admired him.  They had recently submitted a jointly prepared paper to the British Medical Journal on “this sort of issue”.  Nonetheless, at times he expressed his disagreement in a manner that was not only emphatic but appeared quite adversarial.  Whilst I am sure he tried to be fair, I formed the impression that feelings of friendly rivalry may have had some influence on the opinions he expressed.

82. Mr Purnell also argued that Professor Langlands’ opinions had been based, at least to some extent, upon the observations of the third defendant in August and December 1995, and that those observations had been unreliable.  However, Mr Purnell had put to Professor Langlands a substantially correct account of the observations made by Doctors Willington and Tyson and the plaintiff’s husband Mr Brown, and since he had been given the chance to comment on these observations, I gave little weight to this submission.

83. Professor Levi gave evidence that if the cancer had been diagnosed and treated in August 1995 the plaintiff’s prospects of surviving for a period of five years would have increased from about 10 per cent to about 20 per cent.  He agreed that the number of axillary lymph nodes affected by the malignancy provided some guide to life expectancy but disagreed with the opinion of Professor Tattersall that in August 1995 there would have been less than ten lymph nodes involved and possibly less than four.  He agreed that his own opinion would have been different if the number of lymph nodes involved had been less than ten and that his estimation of the number of lymph nodes had been “purely subjective”.  He explained that “we’ve got a very slim knowledge of the biology of the cancer” and agreed that there was no precise criteria that could be taken into account.

84. Professor Levi’s evidence lacked the flamboyance of phrase displayed by Professor Langlands, but his more cautious approach seemed appropriate given the difficulties inherent in forming opinions as to how a cancer he had not seen might have progressed if a mastectomy had been carried out some months earlier than in fact occurred.  He acknowledged that Professor Tattersall and Dr Sullivan had a reasonable basis for their opinions but maintained his own opinions on areas of disagreement.  I formed the impression that he was a well-qualified and competent expert who had approached the issues in a fair and objective manner.

85. Whilst I gave his evidence considerable weight, I ultimately preferred the evidence of Professor Tattersall and Dr Sullivan on the critical issues of the plaintiff’s chances of having gained some improvement in longevity if treatment had commenced earlier. 

86. Dr Craft, another medical oncologist called on behalf of the defendant, gave evidence that a diagnosis of the carcinoma in August 1995 might have resulted in an improvement in long term prognosis.  He said that it was “not possible to estimate the degree to which the prognosis may have been worsened by a delay in diagnosis of six months”.  In his oral evidence, however, he said that in his view “minor” changes in the timing of treatment particularly of very aggressive tumours had little or no impact on the outcome, and that in his opinion a delay of seven months would have had only a very small impact on the outcome.

87. Dr Craft’s view as to the prognosis of the plaintiff having survived for a period of five years was obviously somewhat pessimistic since the plaintiff was still alive more than six years after that first consultation with the third defendant.  However he did say that if the chances of a person lasting five years had been 40 per cent there was probably a 30 or 35 per cent chance of her surviving for ten years.  In any event, he expressed the opinion that if four or less lymph nodes had been involved in August 1995 her prognosis would have been only slightly better.

88. Dr Craft agreed that some indication of the rate of progress of the cancer could be derived from the rate at which it had increased in size.  Mr Brown had given evidence that there had been an acceleration in the rate of growth of the cancer between December 1995 and February 1996.  Hence, there was some basis for suggesting that the cancer may have become more aggressive at that time.  Dr Craft also agreed that it was possible that on a molecular level the cancer cells could, over time, become more aggressive.  He explained that it was an unclear area but that they were biologically unstable cells which accrued more genetic abnormalities over time.  In theory at least, it was possible that if new genetic lesions occurred the cancer could actually become more aggressive innately.

89. When asked whether the tumour had been excised prior to an increase in aggressiveness that would have had any long term effect, he answered “I’m speculating, but it might have, yes.  It’s just not very well understood when and how these changes occur”.  He also agreed that early excision should normally have involved some gain in prognosis over a later excision.  He added:

There was a time when it was opined that surgical treatment of clinical breast cancer maybe made no difference really to the long term outcome except for preventing local problems.  But it’s become clear that removing the primary does help, even in fairly large cancers.  Maybe less so in these biologically aggressive ones, but it does help in preventing the spread of cancer to other organs.

90. These opinions were significantly opposed to those of Professor Langlands at least in so far as they related to the impact of early treatment.

91. Dr Craft had actually supervised the post operative chemotherapy administered to the plaintiff.  In re-examination Ms Morrish stated that she wanted him to speak of his personal knowledge of this case and then asked about the biology of the cancer in August 1995.  In answer to this question Dr Craft said, “I expect it was very aggressive then as well”.  However, Dr Craft first saw the plaintiff on 19 March 1996, twelve days after the mastectomy and had had no personal knowledge of her condition in August 1995.  Whilst the question was no doubt intended to elicit an opinion which was informed to some extent by his subsequent experience in treating the cancer, the answer was obviously not based upon any actual observations of the cancer’s growth prior to the excision of the lump or even the mastectomy.

92. Dr Craft also seemed to be a well qualified and competent specialist who approached the matter in a fair and objective manner.  However, he did not seem to have the same level of experience as Professor Tattersall or Dr Sullivan and I again preferred their evidence as to the plaintiff’s chances of having gained extended periods of survival by an earlier commencement of treatment.

93. Mr Purnell also pointed out that the defendants’ witnesses did not apparently take into account the likelihood that the plaintiff would have remained on Tamoxifen if her prognosis had been more positive.  It is true that she had suffered distressing side effects from the use of the drug, but Dr Lawrence said that in the event of a more positive prognosis he would have “bent over more than backwards” to make sure that she was maintained on the Tamoxifen despite the circumstances in which she found herself.  Tamoxifen improves life expectancy significantly; Dr Lawrence suggested by approximately 30 per cent, whilst Dr Craft agreed that it reduced the risk of recurrence of the cancer by about 25 per cent and increased the chances of survival at any particular point in time by about 15 to 20 per cent.  Professor Langlands also agreed that Tamoxifen was capable of causing cancer to go into remission perhaps for a period of many years.

94. It is true that the plaintiff gave no evidence that she would have persevered with the Tamoxifen in the event of a more favourable prognosis.  However I did not regard the absence of any direct evidence from the plaintiff on this issue as fatal to this aspect of her claim.  In other circumstances it might have been appropriate to have inferred that any evidence from her on this issue would not have assisted her case.  However, she was obviously gravely ill and I formed the impression that both Mr Purnell and Ms Morrish were concerned to limit their questioning of her in order to spare her unnecessary distress.  In all the circumstances, I was not prepared to draw an inference against either party by reason of any failure to put any particular matter to her.  It is true, of course, that the plaintiff bore the onus of proof on this issue and that there was no direct evidence from her as to how she might have reacted in the circumstances posited.  Indeed, it is doubtful whether any significant weight could have been placed upon any evidence that she might have given, since it would have amounted, at best, to a hypothetical opinion as to how she might have reacted to the advice given to her by Dr Lawrence and any such opinion would almost inevitably have been tinged with the wisdom of hindsight.  In any event, this aspect of her claim was ultimately dependent on inferences drawn from other evidence in the case and it was obviously necessary to approach the issue with considerable caution.

95. Dr Lawrence’s evidence suggested that the cessation of the administration of Tamoxifen was essentially the product of a clinical decision which he made.  He said that the plaintiff had suffered significant side effects and that he had had in mind the risk of self harm as a consequence of the medication, the dismal prognosis and the fact that there had already been evidence of a recurrence of the tumour, “thereby making the continuance of Tamoxifen therapy meaningless”.  He said that in those circumstances the most logical thing to do, clinically, had been to just “remove the Tamoxifen”.  He added that the oncologist who subsequently reviewed her case had not “restarted her” on Tamoxifen for those reasons.  I accepted that evidence.

96. Mr Brown said that the plaintiff had reacted very bravely to the medical procedures which had been undertaken.  He said “she [had] been focused from day one . . . upon her recovery” and that, whilst she had “been made very  . . . sick by treatments and procedures, she [had] always attempted to maintain a positive outlook”.  He also said that she had attempted to maintain the appearance of being happy and outgoing for the sake of his feelings and those of their children.  Again, I accepted that evidence.

97. In any case in which a judgment is required as to what a person might have done had events transpired differently it is obviously important to consider the character and temperament of the person concerned and the circumstances in which the relevant decision would have had to have been made.  I had the opportunity of observing the plaintiff in the witness box and of forming at least some impression of her character, which I took into account along with the evidence of her husband and that of Dr Lawrence.  Having regard to her evident determination to recover and her concern for her husband and still young children, I was satisfied that she would have accepted any advice from Dr Lawrence to maintain the use of Tamoxifen if the prognosis had been such that it would have offered a significant chance of extending her life.

98. Accordingly, I accepted Mr Purnell’s submission that if the carcinoma had been discovered by fine needle aspiration in August 1995 earlier treatment would have led to a more positive prognosis, and the continued use of Tamoxifen may have itself extended the plaintiff’s life.  However, it was not clear whether this point had been taken into account by Professor Tattersall or Dr Sullivan in their assessments of the chances of survival for particular periods.  Hence, whilst it provided further grounds for preferring their evidence to the more pessimistic opinions of the other experts, I did not accept that it provided grounds for adopting more optimistic assessments than those that they had given.

99. For these reasons I found that the plaintiff had lost a 40 to 50 per cent chance for living for a period of ten years, at least a 20 per cent chance of living for twenty years and what was described as a “real”, though otherwise unquantified, chance of living for as long as fifty years.

100.Mr Purnell maintained that the plaintiff had incurred significant financial losses for which she should be compensated.  He acknowledged that it would be inappropriate for her to be awarded damages for the full amount of the losses sustained as a result of the disabilities arising from the cancer, but argued that I should allow a portion of each component of loss calculated by reference to the degree of probability that she might have survived throughout the period in question.

101.It was obviously appropriate for the claims made on behalf of the plaintiff to be limited in order to reflect the fact that neither the third nor the fourth defendants had caused the cancer and that she was entitled to be compensated only for the loss of the opportunity to have had the effects of the disease mitigated by prompt treatment following an earlier diagnosis.  It was also understandable that the plaintiff’s legal representatives should have sought some basis of apportionment by which the loss fairly attributable to the negligence of the third and fourth defendants might have been assessed.  However, I was unable to see any justification for an assumption that the extent of any financial losses incurred as a consequence of that negligence could have been estimated solely by reference to her chances of survival during the relevant period.  The chances of survival were obviously relevant to any estimation of prospective losses, but her prospects of avoiding medical expenses or successfully returning to the workforce would have been dependent not only upon the chances that she might have survived but on her state of health during the relevant period.

1. Regrettably, there was little evidence as to the state of health that she might have enjoyed.  It seemed reasonable to infer that any chances of survival for extended periods would have been attributable to some improvement in health, whether due to the cancer being in remission, or merely to delays in its development.  However, the various components of the plaintiff’s claim had to be determined on the basis of a broad assessment of the chances that she may have been significantly less disabled at certain times, and a general allowance for the implications which that lesser level of disability may have had for the issues in question.

1. The plaintiff claimed the sum of $32,749 for medical and other out of pocket expenses.  This amount plainly reflected the cost of her care and treatment since the cancer was diagnosed in February 1996, and much of that expense would have been incurred even if it had been diagnosed in August 1995.  Indeed, Ms Morrish argued that the expense would have been at least as great.  A proper evaluation of this aspect of her claim involved balancing the weight of competing considerations.  The chance of a substantially increased life span would have involved some possibility of less expense being incurred.  The cancer may have gone into remission, more effective methods of therapy may have been devised or the plaintiff may ultimately have died from some other cause.  On the other hand, a delay in the progression of the cancer may not have led to the expenses being reduced but merely incurred over a longer period.  It is even possible that additional expense might have been incurred.  For example, the plaintiff would presumably have had to pay for further treatment with Tamoxifen, as well as other forms of treatment which may have been administered over an extended period.

2. In all of the circumstances I was unable to determine whether any net loss in respect of medical or out of pocket expenses could fairly be attributed to the absence of a prompt diagnosis and hence was unable to be satisfied that any amount should have been awarded in relation to this component of her claim.

3. The claim for loss of earnings did not involve the same balancing exercise because there had been no offsetting possibility of any additional loss of income due to an extended life span.  Hence, it was necessary only to assess the value of any chance that the plaintiff may have had of returning to the workforce and maintaining employment during some portion of the period in question.  She had not been employed in 1995 but had intended returning to work, initially on a part time basis, when her younger son, Hayden, started school.  She had experience as a mothercraft nurse and childcare worker and it is reasonable to assume that she would have had little difficulty in obtaining employment.  An amount of $33,054 had been claimed for the loss of income that she might have derived in this manner.  This claim was largely dependent upon the assumption that, had the cancer been promptly diagnosed and treated, she would have been sufficiently well to have obtained and maintained the anticipated employment throughout the whole of the period between February 1999 when the younger son Hayden started school, and date of judgment.

4. I was unable to accept that this assumption was well founded.  It seemed likely that, even if the cancer had been diagnosed in August 1995, the plaintiff would have been too ill to return to work as she had planned.  Nonetheless, the possibility that she might have been able to earn some income during the period could not be excluded and I was satisfied that she was entitled to be compensated for the loss of that chance.

5. Current award rates of pay under the Child Care Industry (Australian Capital Territory) Award were $13.62 per hour for level 3 workers and $14.91 per hour for level 4 workers.  I was prepared to take judicial notice of the fact that the progressive system of taxation prevailing in Australia includes a tax free threshold and imposes relatively low rates on income marginally above those levels.  In all, I allowed the sum of $10,000 for past loss of earnings including superannuation.

6. I also allowed the sum of $1,350 for interest calculated at the rate of 5 per cent per annum for the period of approximately 2.7 years between February 1999 and the date of judgment.

7. The plaintiff claimed a total amount of $83,780 for damages under the heading of “past care”.  This claim included a Griffiths v Kerkemeyer component, an allowance for the loss of her capacity to care for her children (see Hodges v Frost (1984) 53 ALR 373; Sturch v Willmott [1997] 2 Qd R 310; and Sullivan v Gordon (1999) 47 NSWLR 319) and damages for loss of her ability to perform domestic services (see section 33 of the Law Reform (Miscellaneous Provisions) Act 1955).  Whilst these claims overlapped, there was ample evidence to establish the overall value of the loss and/or damage claimed, but it was again unclear how much could have been fairly attributed to the third defendant’s failure to promptly diagnose the presence of the cancer.  In this instance, however, even a delay in the progression of the cancer would have been likely to have had a significant impact at least on the extent of the need for the care of her children.  Whilst caring for children may not be particularly easy, a parent may sometimes be able to mind her own children in her own home even if too ill to secure a job, travel to and from a place of employment and perform the duties required. 

8. In August 1995 one of the plaintiff’s sons was four years old and the other less than two.  Any delay in the development of her disabilities might well have enabled her to have devoted more time to them whilst they were still very young and, even if that involved nothing more than minding them whilst her husband went to work, real savings might have been achieved.  Furthermore, even if the level of disability had subsequently reached the same level when the children were older, they may by then have required less care.  I allowed the sum of $20,000.

9. A report from Macquarie Reporting Services which was admitted into evidence without objection provided a careful analysis of the earnings which the plaintiff might have been expected to derive from future employment had it not been for the cancer.  On this basis total losses of income and superannuation amounting to $361,781 and $50,446 were projected.  Mr Purnell conceded that some allowance should be made for “the present value of living expenses” in the relevant years and that the figures should be reduced in proportion to the plaintiff’s chances of having survived throughout such periods.  On these bases he claimed the following amounts

24.9.2001- 14.8.2005  $56,933 – $20,000 x 50%   =         $18,466
2005-2015  $177,743 – $30,000 x 20% =         $29,548
2015-2025       $128,240 – $20,000 x 10% =         $10,824

Total  $58,838

1. Ms Morrish submitted, in essence, that no additional loss had been sustained but did not otherwise attack the manner in which these amounts had been calculated.  I was satisfied that the plaintiff was entitled to be compensated for the loss of the chance of future earning capacity and that the methodology employed in calculating the amounts claimed had been essentially sound.  However, I accepted Ms Morrish’s alternate submission that the assumptions upon which the calculations had been based were unduly favourable and that it was necessary to heavily discount these figures to reflect the real possibility that, even if the plaintiff had survived throughout these periods, she may have been unable or unwilling to maintain employment as she had anticipated, and to allow for other contingencies of life.

2. I allowed 20 per cent rather than 50 per cent of the net loss claimed in relation to the first of these periods, 10 per cent rather than 20 per cent of that claimed in relation to the second and 5 per cent rather than 10 per cent of that claimed in relation to the third.  The losses so calculated amounted to $7,386.60, $14,774 and $5,412 respectively.  Similar calculations made in relation to superannuation entitlements revealed further losses of $1,667, $2,458 and $678 for those periods; a total of $4,803.  In all, I allowed the sum of $32,375.60 for the loss of future earning capacity.

3. There was also a Griffiths v Kerkemeyer claim relating to the care of the plaintiff during the remainder of her life, a claim for the loss of her capacity to care for her children (“the Sullivan v Gordon claim”) and a claim for loss of her ability to perform domestic services pursuant to section 33 of the Law Reform (Miscellaneous Provisions) Act 1955. 

4. The most significant was the Sullivan v Gordon claim.  I allowed 20 per cent of the likely cost of child care during the period 2001 to 2005 and that amounted to $19,306.  I noted, however, that the plaintiff’s older son, James, would turn fourteen during 2005 and, whilst accepting that he might need some further supervision and that he could not be expected to be constantly available to mind his younger brother, I was not satisfied that any expenses incurred after this time would be as high.  I allowed a further sum of $3,000, making a total of $22,306. 

5. Sadly, the plaintiff’s death was imminent and no significant allowance could be made for the Griffiths v Kerkemeyer claim. 

6. The claim under section 33 of the Law Reform (Miscellaneous Provisions) Act was more tenable, but much of the loss to which it related was also covered to some extent by the Sullivan v Gordon claim.  I allowed the sum of $2,412, that being 10 per cent of the amount calculated as the present value of the loss of domestic services during the period between 2001 and 2005 on the assumptions referred to in the report from Macquarie Reporting Services.

7. Finally, the plaintiff claimed general damages.  I accepted Ms Morrish’s submission that general damages awarded purely for loss of expectation of life should generally be modest.  That is clear from the High Court’s decision in Skelton v Collins (1966) 115 CLR 94. However, that was a case in which the plaintiff had been rendered permanently unconscious and hence insensible of the deprivation. The High Court’s decision established that in Australia general damages for an injury and its non-economic consequences are based more upon the plaintiff’s subjective feelings than the objective fact of his or her injury: see Haines v Bendall (1991) 172 CLR 60 per McHugh J at 81. A number of rationales for this principle were suggested in Skelton v Collins. Kitto J referred to the fact that opportunities for happiness would have been “off-set by the gain” consisting of release from all liability to unhappiness. His Honour observed that there was no way of forming any confident estimate of what the life would have been like and asked whether anyone could have really regarded any figure “as fairly proportioned to the closing of the door to experiences the quality of which, individually and on balance, is in the nature of things unknowable?”. Windeyer J said at 130 that he had difficulty in grasping the idea that “a man’s life is a possession of his that can be valued in money” and suggested that monetary compensation for the deprivation of life with unimpaired faculties of mind and body “must surely be based upon solace for a condition created not upon payment for something taken away”.

8. I should, perhaps, confess that I have some sympathy for the observations of Upjohn LJ in Wise v Kaye& Anor [1962] 1 QB 638 concerning a permanently unconscious plaintiff, which were quoted by Menzies J in Skelton v Collins in his dissenting judgment at 126:

   Life is worth living even when it involves hard and sometimes unrewarding work, when it entails anxiety and unhappiness, fears and difficulties.  These are the experiences of life, on the whole worth while, of which the plaintiff has been deprived.  The plaintiff is surely entitled to point on the one hand to the active and normal life, with its ups and downs, both valuable, she had every hope of leading, and on the other to the living death which she will lead for the rest of her life.

9. I was, of course, bound by the majority judgment and for that reason approached the issue of general damages on the basis that the award should be directed not to the mere loss of expectation of the life that the plaintiff might have had, but to the pain and suffering she actually experienced, including emotional responses to her awareness of that loss.  The distinction was explained by Taylor J in Skelton v Collins at 113:

   It may be said, of course, that a person who is completely incapacitated as a result of his injuries suffers such a loss whether or not his injuries are of such a character to render him insensible to his loss.  But, in my view, a proper assessment can be made only upon a comparison of the condition which has been substituted for the victim’s previously existing capacity to enjoy life and where the mind is, as it were, willing and the body incapable there is, in my view, a much higher degree of loss than where the victim is completely insensible to his lost capacity.  Perhaps, in other words, it may be said that a person who is obliged for the rest of his life to live with his incapacity, fully conscious of the limitations which it imposes upon his enjoyment of life, is entitled to greater compensation than one who, although deprived of his former capacity is spared, by insensibility, from the realization of his loss and the trials and tribulations consequent upon it.

10. In the present case, the plaintiff had been denied what benefits may have been afforded by insensibility.  She had endured more than six years during which her body had been ravaged by an aggressive, invasive cancer.  She had had to endure pain, discomfort and indignity.  Her enjoyment of the normal amenities of life had been severely disrupted.  She had been unable to care for her children as she would have wanted, to maintain a normal sexual relationship with her husband and to return to her career as she had planned.  She had had to confront the inevitability of her own death and to contend with fear, grief, sadness and no doubt a maelstrom of other negative emotions.  She had had to witness the anguish of her husband and children, to wonder how her death would affect them and to know that she was unable to do anything to effectively assuage their pain.  This had proved so distressing for her that on at least one occasion she had told her husband to leave and find someone else so that neither he nor her sons would have to endure “more heartache”.  She had had to accept the fact that she would not see her sons grow up or be present to care for them and guide them during their development.  Unlike the hapless Mr Skelton, she had been acutely aware of her plight and had suffered greatly.

11. I accepted that much of this suffering was unavoidable.  Even if the cancer had been diagnosed in August 1995, a more timely surgical intervention and other treatment may have extended her life span only marginally.  However, as I have mentioned, there would have been real chances of her having survived for substantial periods of time.  She was entitled to be compensated for the loss of those chances and for the fact that she had had to face death in the knowledge that her life might have been saved.

12. In all the circumstances, I allowed the sum of $120,000.  It appeared likely that the plaintiff would not live for more than a few days and this amount included no allowance for the future.  Consequently, I allowed interest on the whole sum for a period of 6.125 years at 2 per cent per annum.  That amounted to $14,700.

13. In summary, I assessed the plaintiff’s damages as follows:

Out of pocket expenses   Nil

Past loss of earning capacity  $  10,000.00
Interest on past wage loss  1,350.00
Past care   20,000.00
Loss of future earning capacity   32,375.60
Sullivan v Gordon claim   22,306.00
Loss of capacity to perform domestic services         2,412.00
General damages   120,000.00
Interest on general damages   14,700.00

1. For these reasons, I directed that judgment be entered for the plaintiff against the third and fourth defendants in the amount of $223,143.60.

2. I will hear counsel as to costs.

3. Before leaving the matter I should express my gratitude to the legal representatives of the parties and to the court staff some of whom cancelled their plans for a long weekend with little notice to enable the matter to be completed.

4. I might also mention that the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act are likely to create a similar need for urgency in other cases.  Any dying mother is likely to be anxious to ensure that her children have the benefit of damages reflecting due compensation for what she has suffered and for the care that she was and will be unable to give them.  Yet to obtain such damages a plaintiff must not only commence proceedings but have the case completed and judgment entered prior to her death.  It seems inappropriate for damages to be determined largely by reference to the plaintiff’s capacity to cling to life whilst her lawyers pursue expedition and relentlessly oppose any delay.  Furthermore, such a course may involve considerable inconvenience for both parties and the court may be required to balance the risk that delay alone might defeat much of her claim against the risk that the defendant may suffer unfair prejudice if denied sufficient time to prepare his or her case.  Important issues of principle arise in this area of the law and it is for the legislature to determine whether the section should be retained in its current form or amended to address these issues.  However, I would hope that some means could be found of alleviating these problems.

   I certify that the preceding one hundred and twenty eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

   Associate:
   Date:    24 October 2001

Counsel for the plaintiff:  Mr F J Purnell SC with Mr DJC Mossop

Solicitor for the plaintiff:  Maliganis Edwards Johnson

Counsel for the defendants:  Ms J Morrish QC with Ms L Gabriel

Solicitor for the defendants:  ACT Government Solicitor

Dates of hearing:  17, 24-29 September 2001

Date of judgment:  24 October 2001