Camilleri v Medbury

[2003] NSWSC 225

CITATION:	Camilleri v Medbury [2003] NSWSC 225
HEARING DATE(S):	17, 18, 19, 20, 21 March 2003
JUDGMENT DATE:	31 March 2003
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Master Malpass
DECISION:	I find for the defendant on the question of liability. There will be judgment for the defendant. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned
CATCHWORDS:	Medical negligence - meningitis not diagnosed - when infection contracted - what warning, if any, was required - what warning was given - was there a breach of duty - causation.
LEGISLATION CITED:	N/A
CASES CITED:	Rosenberg v Percival (2001) HCA 18.
PARTIES :	Joseph Camilleri (Plaintiff) v Richard John Medbury (Defendant)
FILE NUMBER(S):	SC 20231 of 2001
COUNSEL:	Mr S Campbell SC/ Mr H Bauer (Plaintiff) Mr I Wales SC (Defendant)
SOLICITORS:	Maurice May & Co (Plaintiff) Tress Cocks & Maddox (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

Master Malpass

Monday 31 March 2003

20231 of 2001 Joseph Camilleri v Richard John Medbury

JUDGMENT

1 MASTER: The defendant is a registered medical practitioner who has carried on practice as a general practitioner at Bathurst (Busby Medical Practice). It was a practice that had an out of hours facility. On 29 April 2000, which was a Saturday, the plaintiff had a consultation. It took place about 9.00 am or shortly thereafter.

2 A diagnosis of occipital neuralgia (or pinched nerve) was made. He was given an injection (Depo-Medrol), which is a cortico-steroid. On 30 April 2000, the plaintiff was taken by ambulance to Bathurst District Hospital. The admission time was 4.21 am. Later, he was diagnosed as having pneumococcal meningitis (meningitis).

3 These proceedings were commenced by Statement of Claim filed on 30 March 2001. A claim for damages is made founded on alleged medical negligence. The hearing of the claim commenced on 17 March 2003. The question of liability only had been set down for hearing.

4 During the opening of the plaintiff’s case, the court was told that it was put in the alternative. Firstly, it was said that the defendant should have detected the early stages of meningitis. Secondly, in the alternative, it was said that in the light of the history given by the plaintiff to the defendant and his examination of the plaintiff, the defendant should either have prescribed antibiotics and/or given clear advice that he should immediately seek further medical attention should there be a deterioration in his condition.

5 Sometime thereafter, the contentions concerning failure to warn were reduced to writing (Exhibit 3). It may be said that it saw some changes to the case. It also proceeded on the basis that the meningitis was a development of whatever condition was had by the plaintiff at the time of the consultation.

6 The plaintiff was born in Malta on 13 July 1952. He migrated with his family from Malta in 1965. He obtained his School Certificate at De La Salle College, Ashfield. After leaving school, he first worked as a telegram boy with the PMG. He later obtained employment with the M W S & D B.

7 He spent some time in prison (about 12 months). He was caught growing hemp. He had earlier married in 1983. He has a son and various grandchildren. In 1989, the family moved to Bathurst. He obtained employment with Uncle Ben’s Bathurst. He remained in that employment at the time of his illness.

8 Preceding his illness, he was on two weeks holiday. It may be that he saw the defendant at the end of his holidays.

9 The plaintiff now lives with his wife and grandson at Hawks Nest. There is no dispute that he contracted fulminant meningitis and that he has suffered brain damage. His memory has been badly affected by the illness.

10 I have closely observed the various witnesses during the giving of their respective evidence. In assessing reliability and credibility, I have had regard both to demeanour and evidence.

11 The plaintiff presents as having but limited recollection of the consultation. He recalls complaint of headache and neck pain. He recalls an examination of his neck and his head being moved from side to side. He recalls an injection in the neck. It gave him at least some temporary relief. He has no memory of what was said to him by the defendant.

12 He gave evidence of an experience which he describes inter alia as like going haywire. This he said took place after the injection and when he went outside to wait for his wife.

13 The evidence reveals that he has to be regarded largely as an unreliable witness (inter alia in relation to matters involving recollection). This is not a matter in dispute between the parties. He has a very limited recollection. Much of what he has said depended on what he had been told by others. His evidence was replete with inconsistencies and contradictions and in many respects it stands in stark conflict with evidence given by others.

14 At the time of the consultation, Mrs Camilleri (the plaintiff’s wife) had part-time employment working about three hours per day. During the week preceding the consultation, she had been feeling unwell (she may have been suffering from bronchitis). She decided to see the doctor. She had been a patient of the defendant for about ten years. She decided to attend the surgery on Saturday morning and suggested that the plaintiff also go along with her to see the doctor. He had complained of suffering from headache (which was one-sided the right front part of the head) from the preceding Wednesday. He had been taking Disprin and getting relief. However, the recurring headache kept coming back and Mrs Camilleri didn’t think that he was well. He continued to carry on his normal activities. The evidence leads to the view that his headaches came and went and continued more or less at a constant level. He was no worse on Saturday morning. He did not complain to his wife about fever or vomiting.

15 Both attended the surgery on the Saturday morning. The grandson came with them. The plaintiff had the first consultation. Mrs Camilleri stayed in the waiting room. She went in to see the doctor with the grandson upon the plaintiff emerging from the surgery. As they passed, there was a brief exchange of conversation (see Transcript p 31). He told her that the doctor thinks he had a pinched nerve, he gave him an injection in the neck and that he felt “not real good”. She saw that he had been given Mersyndol (four tablets). He went outside to sit in the car. He did the driving both to and from the surgery.

16 Her evidence was that she noticed nothing odd about his mental state and that he appeared to be normal. On the Saturday morning, he was quite good. He did not appear to have gone haywire after seeing the defendant. The injection gave him relief for a few hours.

17 Following the consultation, after going to the chemist and doing some shopping, they returned home. They had a meal and then sat down to watch television. After about an hour, he fell asleep. She was feeling unwell and was being agitated by the hyperactivity of the grandson. At some time during the day, he took at least certain of the tablets.

18 She decided to take the grandson to a nearby house where both her mother and sister live. Shortly after her arrival, her sister decided that Mrs Camilleri should be taken to hospital. She was then taken to the Bathurst Hospital by her sister. She was at the hospital for about 4 hours. She underwent treatment, she had an X-ray and was given medication (including tablets to control vomiting). Whilst she was at the hospital, there was an encounter with the defendant and some conversation took place.

19 The plaintiff, after being advised by her sister that his wife was at the hospital, came to the hospital. Unfortunately, he arrived after she had departed from it.

20 She left the hospital about 4 – 4.30 pm. She was driven to her sister’s place by her sister. The plaintiff arrived at that place shortly thereafter. He had driven his car. She was driven home by the plaintiff about 6.00 pm. They had another meal and both went to bed early. He went to bed about 8.00 pm.

21 He started to vomit about 8.30 pm (and vomited about six times over a period of about three hours). At about 11.00 pm, he adopted her suggestion that he take a tablet which had been given to her at the hospital to control her vomiting. It stopped the vomiting and he fell asleep. She sat in front of the television and fell asleep. She was woken up by a bang and found the plaintiff on the bedroom floor fitting. He did not seem to be coherent.

22 There is material to suggest that, during the afternoon, both prior to his arrival at the hospital, and thereafter, the plaintiff had experienced certain symptoms. Exhibit C records what the defendant had been told at the hospital. The notes refer to matters such as the plaintiff being quite unwell, global severe headache and vomiting. There is evidence from Mrs Camilleri as to his condition as seen at her sister’s place. She said that he wasn’t well, he had a very bad headache and that all he wanted to do was to pick her up, go back home and go to bed. He was seen holding both hands on the top of his head.

23 It is common ground that largely Mrs Camilleri should be accepted as a credible and reliable witness.

24 Apart from the evidence he gave himself and that of his wife, the plaintiff also called Drs Fisher and Kelly. Dr Fisher is a general practitioner who has prepared two reports. Both suffered from admissibility problems (inter alia the reports did not disclose the reasoning process upon which the opinions were founded). There was no ultimate opposition to the plaintiff being given leave to adduce supplementary oral evidence to remedy the problems.

25 Dr Fisher was given access to the defendant’s records (Exhibit C). It contains the clinical notes. The clinical notes and the subsequent report prepared by the defendant (Exhibit A) show the history that was elicited from the plaintiff and the tests that were undertaken by the defendant for the purposes of excluding the possibility of a serious condition. The duration of the consultation may have been in the order of 15 – 20 minutes.

26 Dr Fisher took the view that on the material contained in those records he would not be able to diagnose meningitis. Further, he took the view that the material contained in the notes did not eliminate bacterial meningitis. He said that the effect of the injection was to hasten the spread of an infection.

27 He took the view that the notes were insufficient to make a diagnosis (other than non-specific headache) and that there were a number of other things that he wanted to know. There were signs that could be associated with migraine or the like. He considered that the diagnosis of occipital neuralgia did not accommodate all of the complaints. He accepted that the headache could have been caused by a combination of factors (including occipital neuralgia). Also, he considered that the ordering of a blood count or something of that nature would be helpful.

28 He gave this evidence in chief:-

“Q. What would you have to do to eliminate it?
A. I believe that when you have a patient who presents with headache one needs to, and if you feel that the patient is not terribly sick, then you have to warn the patient that if that headache increases or there is an increase in vomiting or they get an increase in fever or anything of that nature, then they should seek immediate medical attention and that means immediate because you do not know what the causation of the headache can be.”

29 In passing, it may be observed that the effect of this view is that such a warning is required whenever a patient complains of a headache and presents as not terribly sick.

30 Dr Fisher conceded that tests undertaken by the defendant were those commonly performed to exclude serious cause for the plaintiff’s complaints of headache. It was conceded that at the time of the consultation the classic triad of fever, neck stiffness and altered mental state were absent. It was further conceded that there were signs that were inconsistent with the plaintiff having then had meningitis (inter alia the headaches had continued at a more or less uniform level and tenderness of the right greater occipital nerve).

31 Dr Fisher conceded that he was unable to identify the precise time when meningitis may have been contracted. He conceded that it may well have been contracted after the consultation and later during the same day. However, he preferred the view the contraction was more gradual. There seems to be no dispute that the meningitis contracted by the plaintiff was that which was regarded as being fulminant (as opposed to insidious or acute). Dr Fisher favoured the view that it may have started off as being insidious and then quickly turning to fulminant meningitis.

32 He regarded the contracting of meningitis as having taken place when there was infection of the meninges. He gave evidence of his experience as to the rapid progress of fulminant meningitis. His view was that the quicker the treatment given after the emergence of symptoms, the better chance there was of recovery.

33 He agreed with the views of Professor Tapsall in the areas of pathology and microbiology.

34 Dr Kelly was also a general practitioner (for 38 years). He also prepared two reports. A substantial part of the report dated 27 November 2001 was rejected. A part of the report dated 2 July 2002 was also rejected. The admissible material became Exhibit G. Dr Kelly was permitted to give some supplementary oral evidence concerning the alternative issue.

35 He took the view that the history given to the defendant could be consistent with a case of a serious condition. He did not believe that the headache was caused by occipital neuralgia. He agreed that it could have been a headache of some other non-serious origin. He accepted the proposition that the cause may never be now known.

36 He gave this evidence:-

“Q. In the case of symptom complex of headache over the right frontal region, of one occasion of vomiting, of sore throat, ear-ache and fever, which might be serious or might not be, what specific warning or advice would you give in relation to that condition?
A. You would tell the patient that if those symptoms which had occurred on one occasion, such as the vomiting, re-occurred or if the headache became worse or if the patient became unwell in any other aspect, that the patient should contact you.
………………………………………….
Q. Would it be necessary to give advice in any time frame in relation to that?
A. Yes.
Q. What advice would be necessary to give in relation to a time frame?
A. That the patient ought contact the practitioner when one or other of these problems previously mentioned had occurred.
……………………………………………
Q. Would it be consistent with proper professional practice as a general practitioner to give any supplementary advice in the event that there was difficulty experienced in contacting the doctor?
A. Yes.
Q. What would that advice be?
A. To contact alternate medical advice; presumably in a situation such as this patient was in, the local base hospital.
…………………………………..”

37 In some respects, the evidence given by Dr Kelly during his cross-examination seemed to have its inconsistencies. One view expressed was that the plaintiff was not clinically diagnosable as having meningitis at the time of the consultation. It was somewhat unclear as to whether or not he took the view that the plaintiff had some precursor to meningitis at the time of the consultation or in fact had some insidious form of meningitis at that time. As an expert and as a witness, I did not find him to be impressive.

38 These considerations need not be pursued. As was the case with the evidence of Dr Fisher, it later became common ground that the evidence of Professor Tapsall should be preferred to that of either Dr Fisher or Dr Kelly. Both of these two general practitioners gave evidence that was erroneous. Both gave evidence which was not to me persuasive.

39 At the conclusion of the case for the plaintiff, counsel informed the court that the plaintiff’s sister-in-law would not be called and advanced six reasons why she could not be called. Following the making of that statement, counsel for the defendant informed the court that he would not be taking any Jones v Dunkel point by reason of the failure to call her.

40 The defendant was the first witness in his own case. He has been a general practitioner for about 25 years. His recollection of the consultation largely depended on his notes. The notes were elaborated in the subsequent report. He recorded what he regarded as the significant or positive symptoms. It was the headaches that caused the plaintiff to see him. He undertook various tests for the purpose of excluding any serious cause for the complaints. The complaints (other than headache) appear to have been elicited following questioning from the defendant.

41 The report prepared by the Defendant on 27July 2000 contained the following:-

“He gave a history of having had a headache for the past four days. He said the headache was over the right front part of his head, and was throbbing in nature. On further questioning he admitted to having vomited once, a sore throat and earache and fever. He denied any prior serious ill health, although he did day (sic) he had had a similar headache in the past (about 6 months ago) and had consulted the “Company Doctor” about it. He said he was told he had an infection, but was vague about its nature or any treatment he was given at the time.
Examination revealed his BP to be 120/80 mm Hg, pulse rate 72/min and regular, normal temperature (37 C) and his neck was supple. I could not find any abnormality on examination of his eyes or fundi, nor in his ears, nose or throat. I did note some tenderness of his right greater occipital nerve. He was not particularly distressed, and he did not appear to be very ill at this time.
I made a provisional diagnosis of neuralgia of the right greater occipital nerve.
His treatment consisted of infiltration of the tissue around the nerve with Depo-medrol and local anaesthetic, after which he reported some relief of his headache. I prescribed follow up analgaesic (sic) tablets and suggested he have two days off.”

42 Because of evidentiary shortcomings, it may be that there is some uncertainty as to what symptoms were being experienced by the plaintiff at the time of the consultation. His limited recollection extends only to the headaches and neck pain. The evidence of his wife mentions complaint of headache only. The material from the defendant suggests the view that the plaintiff was currently suffering from headache and tenderness in the right greater occipital nerve only.

43 The defendant was the subject of a lengthy cross-examination. Despite this, save as to perhaps for one matter, when it came to submissions it was not said that he was an unreliable witness or that his evidence should not be accepted. There was no attack on his credibility. The approach taken by the plaintiff is to treat the defendant as a competent country general practitioner who committed a casual act of negligence.

44 Prior to the hearing, he had provided answers to interrogatories. The verifying affidavit was sworn on 11 May 2002.

45 There were differences between what was said in his evidence and what had been provided by way of answer to the interrogatories.

46 One matter concerned the history given by the plaintiff. In the interrogatories, he had given an answer to the effect that the plaintiff had no fever and no diarrhoea. At the outset of his evidence, he sought to correct what he said was an error which was said to arise from a later reading of his notes. The clinical notes contain the following:-

“Fever no D.”

He had mistakenly read this as recording “no fever”. The evidence given in chief was that the plaintiff had provided a history of fever. The evidence is that at the time of the consultation, the plaintiff was afebrile. His temperature was taken and it was normal.

47 Another matter concerned the nature of his diagnosis. In his evidence, he had described it as being a provisional or working diagnosis (see also Exhibit A). In the answers to interrogatories it was described as being a preliminary diagnosis. In his evidence, he had taken the stance that he would not use the expression “preliminary diagnosis”, but that the words “preliminary” and “provisional” meant much the same to him. This material sparked some brief, but inconclusive, debate on the respective meanings of “preliminary” and “provisional”.

48 The remaining matter concerned what was said by him to the plaintiff at the end of the consultation. It was a matter relevant to the issue of failure to warn. It did produce a submission that evidence given by him inter alia in chief on it should not be accepted. This evidence was to the effect that it was his practice to say if things get worse or don’t improve ring me back straight away and that he was on call for the weekend and that the practice had an after hour’s facility. In the answer to interrogatories, he had earlier said that he advised the plaintiff that if his symptoms did not improve he should return for review.

49 In cross-examination, he was confronted with this difference. It occupied considerable court time. He gave the following answer towards the conclusion of the cross-examination on this matter:-

“Q. What you said to Mr Camilleri on 29 April 2000 was, if there is no improvement come back for review, wasn’t it?
A. Yes.”

In submissions, this answer was propounded by the plaintiff as being a concession.

50 Professor Tapsall was an expert retained by the defendant. He had provided a detailed report (Exhibit 1). Subsequently, he took up employment in Geneva. The plaintiff wished to cross-examine him. Arrangements were made for his evidence to be taken from Geneva.

51 His evidence was interposed and given by video link (commencing at 7.00 am). He gave supplementary oral evidence and was cross-examined and re-examined.

52 He is an eminent expert. His qualifications may be found in Exhibit 1. His medical practice is now done in hospitals. Contrary to what had appeared in his report, he was asked to assume that there had been a history of fever. This assumption did not cause him in any way to alter the opinion expressed in this report. There was no real challenge to the contents of his report and his evidence. Indeed, it became common ground that his evidence should be accepted.

53 It is not necessary to repeat the detail of the contents of his report and evidence. It suffices to briefly mention certain of what he has said. His report sets out what are regarded as the indications for referral of adults for admission for investigation for possible meningitis. His report also observed that the plaintiff had none of these when seen by the defendant. His evidence establishes that the plaintiff was not suffering from meningitis at the time of the consultation and that at such time a diagnosis of meningitis should not have been made. The contraction of meningitis took place at some time thereafter. The progression of meningitis is rapid and in the case of that which is fulminant, it may be extremely so (over just a few hours). Further, it establishes that antibiotics should not have been given. Also, it establishes that the injection did not in any way contribute to the evolution of meningitis.

54 As the trial proceeded the issues continued to narrow. At the end of it, one remained.

55 The contention that the defendant should have diagnosed meningitis at the consultation never really had much support and had fallen by the wayside at the conclusion of the evidence. A similar fate befell the contention that the defendant should have administered antibiotics.

56 Although, throughout the trial, counsel for the plaintiff continued to attack the diagnosis of occipital neuralgia, the direction of that attack underwent change. It was later persisted with on the basis that in any event it was an erroneous diagnosis. I came to the view that this attack threw up a question which would not be determinative of the result in these proceedings. Ultimately, the plaintiff accepted that this must be the case and the question was put aside.

57 For completeness I should make two observations. I am not satisfied that the defendant made an erroneous diagnosis. I am satisfied that the defendant correctly excluded meningitis.

58 The only real issue remaining at the end of the trial was whether or not an adequate warning had been given to the plaintiff. This issue only gained momentum or life following the commencement of the hearing. It was not a matter to which the experts had adverted in their respective reports.

59 It is common ground that what will be an adequate warning will vary from case to case. The nature and extent of the warning will be determined by the circumstances of the particular case before the court.

60 The plaintiff embraces the version given by the defendant in evidence-in-chief as expressing the warning that was appropriate in this case. What had been said in evidence by Drs Fisher and Kelly excited little debate. Such an approach received support from what had been said by Dr Fisher and other evidence of the defendant and perhaps to a lesser extent from the views expressed by Dr Kelly. In opposition to this stance, the defendant says that, if a warning be required, what was said in the answers to interrogatories properly expresses the warning that should have been given in this case.

61 It was common ground that the question of the warning to be given was a matter for the court to decide. Evidence of professional practice and opinion is relevant, but not conclusive (Rosenberg v Percival (2001) HCA 18).

62 I now turn to the question of what warning, if any, was given in this case. The plaintiff does not dispute that a warning was given. The plaintiff advances what is regarded as the concession as being decisive on this question. Counsel for the defendant does not abandon what was said in chief. He presents what was said by way of answer in the interrogatories as being an answer given at a time when attention was not focused on the failure to warn issue and also disputes that the evidence of the defendant was a concession which abandoned earlier evidence. It may be that there is some force in these submissions. But for present purposes, these matters need not be pursued.

63 What appears in the answer to interrogatories, was given at an earlier point of time when it could be expected that the defendant’s recollection may have been clearer. It seems to me, that it is what he ultimately embraced in evidence. Accordingly, I find that this was in fact the warning given by the defendant to the plaintiff.

64 I now turn to the question of whether or not this warning was adequate. On this question, the plaintiff looks to what has been described as the constellation of symptoms and says that the diagnosis made did not take into account or cover all of the symptoms (or as it was otherwise said, some of them were “leftover” ). The plaintiff also stresses what is said to be the serious potential that these symptoms had.

65 This was a case where it was the suffering of the headaches that had brought the plaintiff to the consultation. These were headaches that had remained at more or less the same level during the four-day period with Disprin giving some relief. There may have been a similar headache problem about 6 months ago which had gone away. The defendant conducted various tests to exclude the possibility of a serious condition (including that of meningitis). He correctly diagnosed that the plaintiff was not then suffering meningitis (inter alia he had carried out the appropriate neck test). Although the plaintiff had given a history of an incident of fever (at some earlier unspecified time) his temperature was normal at the time of the consultation. There had only been one incident of vomiting (again also at some earlier unspecified time). The plaintiff’s eyes, ears, nose, throat and neck were examined. His blood pressure and pulse were taken. There were no abnormalities and his neck was not stiff. Only tenderness in the occipital nerve was noted. The plaintiff had been able to carry on his normal activities and did not appear to be very ill. This was substantiated by other evidence. The injection gave him some relief. It was suggested that he only have two days off.

66 In my view, in the circumstances, the defendant was entitled to take the view that the plaintiff was not then suffering from any serious condition and that there was no potential for his then symptoms to turn urgently into a serious condition which was life threatening. He was warned that if his symptoms did not improve he should return for review.

67 Whether or not the circumstances threw up a need for a warning, it seems to me that the warning in fact given was sufficient in the particular circumstances of this case.

68 There may be a question of whether or not there is any real difference in the two competing warnings. However, it was not argued. In substance, save for perhaps consideration of urgency, there may be similarity in effect. For present purposes, I do not need to take this matter any further.

69 There is one further question. In the light of what has been earlier said, it is one that is now also unnecessary to determine. It is a question of whether or not in the absence of any adequate warning given the plaintiff’s case must still fail.

70 In this case, there is evidence that leads to the view during Saturday afternoon there came to be a significant change in both symptoms and his condition and that he should have sought medical attention when he was in fact at the hospital.

71 Leaving that matter aside, from about 8.30 pm there was further significant change and the vomiting could not be controlled. There is evidence to suggest that he was still lucid until about 11.00 pm. This was the time when he made the decision to take the tablet which had been given to treat his wife.

72 A decision to take him to hospital was not made until after the fitting commenced. At that stage, there was really no other alternative but to get urgent medical attention.

73 The circumstances of this case are somewhat unusual because apart from the problems of this plaintiff himself, his wife was also ill (probably since the preceding Monday). During Saturday afternoon, she said that she felt like dying. Indeed, they both may have taken the view that her illness was more serious than his, at least until about late afternoon or during the night on that Saturday.

74 The plaintiff was a man who was apparently reluctant to seek medical attention. Although, he had reached the stage prior to the Saturday, where he was prepared to go along with his wife’s suggestion to see the doctor, his normal reluctance may explain why he did not seek further medical treatment when his condition continued to worsen. The illness of his wife may also help to explain why no such action was taken. But for that illness she would not have hesitated to take him for medical treatment (Transcript p 49).

75 Both the plaintiff and his wife would have known that the practice had an after hour’s facility. They knew of the services available at the hospital and of its close proximity.

76 In the circumstances, commonsense should have dictated that action be taken to get medical treatment.

77 Leaving aside these considerations, the plaintiff had the relevant knowledge. He knew, prior to the consultation, that any head condition was potentially serious and that if things got worse he should seek medical attention (Transcript p 23, 24).

78 In the circumstances of this case, I am not satisfied that the plaintiff needed a warning to seek urgent or other medical attention should there be adverse change in his state of health.

79 The defendant for yet another reason says that there was no liability for the damage suffered. He says that the damage claimed by the plaintiff could not be said to be caused by the alleged breach of duty. It is said that the warning was related to the condition upon which the defendant was called to treat and not to damage that was co-incidental.

80 The plaintiff’s case has laboured under the persisting error that the contracting of meningitis was a development of or a progression of the condition for which the plaintiff was treated at the consultation. In fact, he was treated for a non-serious condition. He later contracted a different and very serious condition (meningitis). In my view, there was no causal link between what was done or not done by the defendant and the subsequent unfortunate damage suffered by the plaintiff thereafter. Indeed, in my view, the defendant did not owe any duty of care in respect of the infection contracted after the consultation.

81 Accordingly, I find for the defendant on the question of liability. There will be judgment for the defendant. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

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Last Modified: 04/01/2003