Carney v Newton
[2006] TASSC 4
•15 February 2006
[2006] TASSC 4
CITATION: Carney v Newton [2006] TASSC 4
PARTIES: CARNEY, Deborah Katherine
v
NEWTON, Robert
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 95/2005
DELIVERED ON: 15 February 2006
DELIVERED AT: Hobart
HEARING DATE: 6 – 8 February 2006
JUDGMENT OF: Underwood CJ, Evans and Blow JJ
CATCHWORDS:
Appeal and New Trial – New trial – In general and particular grounds – Particular grounds – Misdirection or non-direction – Directions as to particular matters – Other matters – Balance of probabilities – Contradictory and confusing directions.
Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, referred to.
Aust Dig Appeal and New Trial [177]
REPRESENTATION:
Counsel:
Appellant: D J Porter QC and J F Matthews
Respondent: K B Procter SC
Solicitors:
Appellant: Jo Matthews
Respondent: Murdoch Clarke
Judgment Number: [2006] TASSC 4
Number of paragraphs: 80
Serial No 4/2006
File No FCA 95/2005
DEBORAH KATHERINE CARNEY v ROBERT NEWTON
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
EVANS J
BLOW J
15 February 2006
Orders of the Court
Appeal allowed.
Judgment entered on 5 December 2005 is set aside.
There will be a new trial of action no 618/2004.
Serial No 4/2006
File No FCA 95/2005
DEBORAH KATHERINE CARNEY v ROBERT NEWTON
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
EVANS J
BLOW J
15 February 2006
Introduction
This appeal is brought against a judgment for the respondent following a jury trial. The grounds of appeal are confined to claimed errors by the learned trial judge in his directions to the jury.
It is a very sad case. In November 2002, the appellant was diagnosed with a node positive carcinoma of the right breast. The cancer had spread to the lymph nodes and beyond. The appellant's life expectancy is very short.
The appellant's case at trial
Both the appellant and the respondent are general medical practitioners. In about 1993, the latter became the former's general practitioner. By her statement of claim the appellant pleaded that she consulted the respondent on 26 January 2002. She did so in order to have a general medical check-up prior to attempting the conception of her second child. This is known as a "well-woman check". In the course of the examination, the respondent examined the appellant's breasts. All these facts are admitted on the pleadings.
The appellant pleaded and gave evidence to the effect that the respondent said that he detected what he described as a "gritty" area in the upper outer quadrant of the right breast. The appellant claimed that the respondent also said, "We'll just keep an eye on that. In your age group it's likely to be a fibro-adenoma and nothing to worry about. Just keep an eye …", but advised no further investigations or treatment. The appellant said that she then felt the area referred to and felt some freely moving tiny lumps like grains of half cooked rice.
After the consultation on 26 January 2002, the appellant undertook regular self breast examinations. She conceived her second child in July 2002 after an initial miscarriage in May or June of that year.
On 24 October 2002, the appellant noticed that she had a swollen red patch on her right breast. As it did not resolve, she consulted the respondent on 28 October 2002. The appellant said that she told the respondent that she thought that she had mastitis and after a gentle examination, as the affected area was painful, the respondent agreed with the appellant's self-diagnosis. He recommended therapeutic ultrasound and prescribed an antibiotic. He also recommended a diagnostic ultrasound after the swelling had gone down.
The appellant decided to take matters into her own hands. She arranged for a diagnostic ultrasound to be done on Friday, 1 November 2002, and for a biopsy to be taken by a fine needle aspiration on Monday, 4 November. It was then that the appellant learnt that she had invasive adenocarcinoma, stage 3, with metastases to the lymph nodes.
A great deal of expert medical opinion evidence was adduced during the course of the three week trial. It appears to have been common ground that the history of the cancer identified on 4 November 2002 began with the formation of cells in the ducts of the right breast known as ductile carcinoma in situ (DCIS). DCIS is benign and may remain so or may be a precursor to malignant carcinoma. In the appellant's case, these cells became invasive, ie, developed the capacity to escape from the ducts. For so long as the invasive cells remained in the breast, they were not necessarily fatal and could be removed by surgery. However, in the appellant's case, the invasive cells became metastatic and had invaded other parts of the appellant's body by the time they were detected.
The respondent's case at trial
The respondent had no independent recall of the results of the examination of the appellant on 26 January 2002. He relied entirely upon notes that he made at the time of the examination. Relevantly, those notes showed two ticks next to the word "breasts". In his evidence, the respondent explained that that indicated to him that no abnormality had been detected in either breast. He said in his evidence that "gritty" was not a word he would have used to describe something he felt on palpation because it indicated to him something that the patient felt.
The issues at trial
It is important to understand that the appellant's case rested upon the proposition that the respondent did detect an abnormality in her breast. There was no allegation that the respondent omitted to detect or to diagnose anything. The appellant's case was that the respondent should have done more than say "We'll keep an eye on that" and in failing to do so, he was in breach of the duty of care that the respondent admitted he owed her and/or in breach of a term of the contract made between them.
There was considerable medical opinion evidence, including that given by both the appellant and the respondent, all to the effect that upon detection of an abnormality in the breast, in substance, the appropriate course to take is as follows:
(a)Conduct another palpation within not more than two weeks or after the next menstrual cycle, whichever occurs sooner, and if the abnormality is still present, order an ultrasound. If the patient is post-menopausal, a mammogram should be ordered in place of the ultrasound.
(b)An alternative to (a) is to immediately order an ultrasound or mammogram upon detection of the abnormality.
(c)Depending on the results of the ultrasound or mammogram, order a biopsy.
At trial this was referred to as the "triple test". There were some slight differences of opinion about the order of events, but in substance, there was unanimity about the appropriate course to follow upon detection of a lump or lumpy area in the breast. There was no issue that the respondent did not order the triple test and no substantial factual issue that had the respondent detected the abnormality that the appellant said he detected in the appellant's right breast, not to order the triple test was a failure to conform with the standard of care expected of a reasonably competent general practitioner.
The major factual issue at trial was whether the respondent detected any abnormality at all. There was substantial evidence to the effect that DCIS may have been present on 26 January 2002, but not then detectable by palpation.
By her statement of claim, pars18(a) and 18(b), the appellant put her case on the basis that the breach of the admitted duty of care and/or the breach of contact caused her to suffer carcinoma in the breast and lung, with associated physical and mental sequelae; or alternatively, caused her to lose the chance of a better outcome that would have attended an earlier diagnosis of the treatment of breast cancer.
One problem was that there was no means of ascertaining with any certainty what was the condition of the appellant's breast on 26 January. Expert evidence was adduced by both sides as to the state of affairs on 26 January 2002, based on hindsight reasoning from what was detected following the biopsy in November of that year. The evidence was not definitive. However, for the purpose of determining this appeal, there is no need to survey it in any detail. In essence, there appeared to be a general consensus that ductile cells were probably present in the appellant's right breast when she was examined on 26 January 2002. One expert witness was of the opinion that at that time the cells may have been invasive and the other was of the opinion that at that time it was likely the cells had been invasive. If they were invasive on 26 January 2002, both witnesses were of the opinion that they may, or may not, have then escaped the breast. Had they not escaped the breast, it is likely that breast surgery would have eliminated the cancerous cells. Even if the invasive cells had escaped the breast, treatment by surgery, chemotherapy and radiotherapy soon after 26 January 2002 would have given the appellant a better outcome than is presently the case, but not necessarily destroyed all the invasive cells.
The jury findings
The learned trial judge gave the jury an eight page written memorandum together with oral directions. He also gave the jury seven questions to answer. Two of those questions were divided into two parts. The first three questions were:
| "1 Do you find that the defendant breached one or more of the duties of care pleaded in paragraph 17(a), (b) and/or (c) of the statement of claim? | YES/NO |
| 2 If "yes", do you find: (a) That the plaintiff has suffered the injury pleaded in paragraph 18(a) of the statement of claim? or (b) the injury pleaded in paragraph 18(b) of the statement of claim? | YES/NO YES/NO |
| 3 If "yes" to 1 and 2(a) or (b), do you find that the injury was caused by any breach of duty you have found proved? | YES/NO" |
The next three questions dealt with the assessment of quantum of damage and contributory negligence. The last question asked:
| "7 In the event that you find only a breach of a duty pleaded in paragraph 17(d) or 17(e) of the statement of claim, what sum do you assess should be paid as nominal damages? | $……..…………" |
With respect to the last question, it was the appellant's case that in addition to the breach of duty that occurred on 26 January 2002, the respondent also breached his duty on the occasion of her consultation with him on 28 October that year. However it was common ground that even if the respondent was then in breach of his duty of care, the damage suffered between the date of that consultation and the diagnosis following biopsy seven days later must have been, at best, minimal. Curiously, the jury was not asked to answer a question as to whether the respondent had breached his duty on 28 October 2002. Question 7 appears to assume that he had. The jury answered "Nil" to question 7. The events of 28 October 2002 have no direct relevance to the issues raised by the notice of appeal.
The jury answered the first question in the negative and consequently gave no answers to any of the other questions (except number 7). The respondent moved for judgment in accordance with the jury findings and it was entered for him against the appellant.
The notice of appeal
As drawn, the notice of appeal contains 10 grounds. As mentioned earlier in these reasons, all the grounds allege errors in the learned trial judge's directions to the jury. One of the grounds was subsumed under another ground. Two were argued as one ground and three grounds were abandoned. This left five effective grounds of appeal for determination.
Did the learned trial judge adequately instruct the jury with respect to the role of a juror?
Mr Porter QC made a submission on behalf of the appellant to the effect that the learned trial judge had not adequately explained the duty of each juror to be true to his or her oath or affirmation. He submitted that there was an unacceptable risk that jurors might improperly have agreed to the unanimous verdict when they did not believe that verdict to be correct, either because of a perception of an obligation to reach a collective verdict, or because of a perception of an obligation to reach a verdict that accorded with the wishes of the community.
Very early in the summing up, the learned trial judge told the jury a number of times that they had a responsibility to decide facts and make judgments as "representatives of the community". He explained that a jury is asked to give a verdict using the understanding, common sense, and life experiences of its seven members. His Honour said nothing at that stage about the duty of each juror to be true to his or her oath or affirmation. Expectations of the community may be relevant to a jury's assessment of damages, but were of no relevance to this jury's fact-finding in relation to questions going to liability, save that the community might be taken to expect that the jury would determine such questions in accordance with the law. However, there is no reason to think that any juror might have thought that a verdict for the respondent accorded with the wishes of the community unless such a verdict was a true verdict in accordance with the evidence.
Later in the summing up, his Honour clearly explained that a unanimous verdict was required until the jury had been deliberating for three hours, but that thereafter a majority verdict agreed to by five or more jurors could be returned. Towards the end of the summing up, he said this:
"The strength of a jury is that you work together, you exchange views, you might put up different propositions to each other, you might remind a juror of something that you regard as significant and you will no doubt pay respect to each other for your differing views. At the end of the day so you're working collectively, at the end of the day the verdict is for each of you, it's you who must be satisfied on the balance of probabilities of certain things. So we swear you in individually, you work as a group, that's the strength, and at the end of the day the verdict is yours, that's the lonely task each."
The jury retired to consider their verdict early on a Friday afternoon. The learned trial judge permitted them to leave the Court at the end of the day and return on the Monday morning. Before adjourning on the Friday afternoon, his Honour gave the jury a number of instructions to the effect that they must not form fixed views over the weekend as a result of individual thinking. The first of those instructions was as follows:
"You may want to do some individual thinking. That doesn't count though as your verdict, it's what happens between you that counts …".
His Honour also said the following:
"… you don't develop your thinking where you come back with a fixed idea Monday morning. It's the dynamics of seven at your deliberations, not individual thoughts somewhere else."
A little later his Honour said this:
"… but no fixed positions, please, because it ruins your deliberations …".
The jury deliberated for over four hours on the Monday before returning their unanimous verdict.
In Black v R (1993) 179 CLR 44, the leading case as to the direction that should be given to a jury that is having difficulty reaching agreement in a criminal trial, Mason CJ, Brennan, Dawson and McHugh JJ said the following at 51:
"Jurors do have a responsibility to act collectively but only in the sense that individual jurors should participate in the collective consideration and discussion of issues in the jury room. There is a risk that references to a collective responsibility or duty may be understood more broadly by the jury and as an invitation to an individual juror to subordinate his or her views to those of a majority of jurors. Consequently references to 'give and take and adjustment' and collective duty or responsibility should be avoided."
In this case the jury did not ever give any indication that they were having difficulty reaching agreement. Nothing said by the learned trial judge is likely to have caused any juror to agree to the verdict if he or she did not believe it to be correct. It is true that the learned trial judge did not give the jury an explicit instruction that they were to reach their verdict in accordance with their individual oaths, affirmations and consciences, and not to agree to a verdict that they did not believe to be correct. However his instructions as to unanimous and majority verdicts, being sworn in individually, and "the lonely task each" made the individual duty of each juror sufficiently clear. The comments made by his Honour before the weekend adjournment as to fixed views were not inappropriate. Jurors who form opinions prior to agreement being reached as to a verdict should always be willing to have their opinions tested by discussion. His Honour went no further than to tell the jury, in his own way, that they should not form any opinions during the weekend break that they were not prepared to discuss and, if so persuaded, change.
In our view the learned trial judge adequately instructed the jury as to the individual responsibility of a juror, and nothing that he said is likely to have caused any juror to subordinate his or her views to those of a majority of jurors, or to some perceived view on the part of the community. The ground relating to the role of a juror must fail.
Did the learned trial judge adequately instruct the jury with respect to duty of care and breach of duty?
The appellant contends that the learned trial judge failed to properly instruct the jury as to the content of the respondent's duty of care and how the law relating to breach of duty applied to the facts of the case. The learned trial judge's directions in relation to these matters were not extensive, but this does not necessarily indicate that they were inadequate. Before turning to the directions, it is necessary to establish what remained in contention between the parties in relation to the respondent's duty of care to the appellant and his alleged breach of that duty by the time it fell to the learned trial judge to sum up the case to the jury. The scope and extent of a judge's summation is governed by the real issues in a case. As to the role of a judge on a civil trial, in Alford v Magee (1952) 85 CLR 437, the court said at 466:
"We are in complete agreement with what was said by Owen J in Commissioner for Road Transport and Tramways v Prerauer (1950) 50 SR (NSW) 271, at 277; 67 WN 228. And it may be recalled that the late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are."
In Diego v Australian Iron & Steel Pty Ltd [1966] 1 NSWR 181, Asprey JA said at 187:
"It is essential that the law should be correctly and fully stated but as far as possible in simple and plain terms. Not the whole of the law on the subject should be given but only that part of it which is essential to a clear understanding of the issues which the jury has to determine; and the directions should be adapted to the special circumstances of the case ...".
The question whether the respondent owed the appellant a duty of care was not in issue. It was admitted on the pleadings that the respondent was under a duty to exercise reasonable care in examining, diagnosing, advising, managing and treating the appellant. What was relevantly in issue was whether the respondent had breached that duty:
·referable to the 26 January 2002 consultation because:
"(a) he failed to properly diagnose that the findings of a gritty area in the upper outer quadrant of the plaintiff's right breast was a probable sign of breast cancer;
(b) notwithstanding the findings of the examination, advised the plaintiff that she could safely conceive;
(c) failed to advise the plaintiff to attend upon him for monitoring of the gritty area detected upon examination;"
·referable to the 28 October 2002 consultation because he:
"(d) diagnosed that the plaintiff's breast cancer was mastitis;
(e) advised the plaintiff to self administer ultrasound."
The respondent denied these alleged breaches. As to the 26 January 2002 consultation, his denial raised two distinct issues. The first issue was whether he had detected a gritty area in the appellant's breast. If so, the second issue raised was whether what the respondent then did, and the advice he then gave, amounted to a breach of his duty of care to the appellant.
In opening the appellant's case to the jury, her trial counsel, Mr Tree SC, explained that in order for her to succeed, it was necessary for her to establish that the respondent had identified a gritty area in her right breast on 26 January 2002 and that the appropriate response from a competent and reasonable medical practitioner, who identified such a change in a woman's breast was a diagnostic ultrasound, a mammogram and a fine needle aspiration. He said:
"There is limited dispute, as I presently understand the case, that if indeed gritty changes had been detected by a competent general practitioner at that time, that one, or all three, of those responses was appropriate."
Mr Tree's understanding proved to be correct. The appellant gave unchallenged evidence that where a breast abnormality was detected, the recommended process was the triple test. The appellant said that if she found an unusual area in a patient's breast, she would invariably either refer the patient for at least a mammogram and ultrasound, or review the patient after a specified period and if the abnormality persisted, refer the patient for imaging.
Amanda McBride, a medical practitioner, gave evidence that if she detected a breast abnormality in a patient of the appellant's age, whether a gritty abnormality or some other abnormality, her practice was to recommend an ultrasound and give the patient the option of seeing a specialist.
When, subsequent to this evidence, the respondent's counsel, Mr Procter SC, opened the defence case, he said that in a nutshell the defence was that the respondent's examination of the appellant on 26 January 2002 revealed no abnormality in her breast and that this was the major issue in the case. He did not suggest that if a gritty area had been found, the respondent's response to that finding would not have breached his duty of care to the appellant.
The respondent gave evidence that had he found a gritty area in the appellant's breast, his response should have been to further investigate it. He referred to a wide range of abnormalities that might be found in a woman's breast which warranted further investigation. They included a lump, a nodule, an abnormal area of thickening and tenderness. He said his responsibility was to ensure that such things were not breast cancer, and that upon a patient presenting with an abnormality, even if nothing was found on palpation, he needed to be convinced that all was well internally and to do that, an ultrasound and/or mammogram was needed. He said that on finding an abnormality in a woman's breast, his policy was not to stop his investigations until he had a diagnosis from a surgeon, and that this had been his practice for as long as he could remember. The respondent gave no evidence to suggest that had he in fact detected a gritty area in the appellant's breast on 26 January 2002, an appropriate response would have been to have simply told her to keep an eye on it. The clear effect of his evidence was that in that event, he would have been obliged to monitor and further investigate the abnormality and a failure to do so would have breached his duty of care to her.
Patricia Shepherd, a general medical practitioner, gave evidence that with reference to breast cancer, the triple test diagnostic approach had been impressed on general practitioners over the past 10 years. As to what should prompt a general practitioner to embark on the triple test, she said:
"Well I think actually general practitioners have an extremely low threshold for investigating anything that they detect on a clinical breast examination. I think that it may be a degree of asymmetry, it may be a particular breast lump, it may be an area of thickening in a part of the breast, you know, or it may be that the woman has symptoms, but I believe that general practitioners have a fairly low threshold for proceeding with further investigations of any breast abnormality."
She explained that by a low threshold she meant that general practitioners were concerned not to miss anything in a woman's breast.
Geoffrey Davidson, a general medical practitioner, gave evidence that if a general practitioner detected an abnormality such as a lump or grittiness in a patient's breast, it was necessary for the practitioner to keep a very close eye on the abnormality and review it within a week or a fortnight, and some sort of investigation would need to be done to endeavour to ascertain what the abnormality might be. He said that the need for diagnostic tests, the triple test, had been heavily promoted amongst general practitioners.
In his closing address to the jury, Mr Procter said that the jury's determination on whether or not the respondent had found an abnormality in the appellant's breast on 26 January 2002 was crucial to the outcome of the case. Mr Procter said nothing to suggest that if an abnormality had been found on that day, then the respondent's response to that finding was not a breach of his duty of care to the appellant.
Mr Tree began his address to the jury by saying:
"Members of the jury, let's cut to the chase. There are two questions which this case really has finally sieved down to. They are, firstly, did Dr Newton detect an abnormality in Deborah Carney's right breast on the 26th January or not. That's the first issue. The second issue is this, if he did, had he responded appropriately would the plaintiff be different to how she is now …".
As can be seen, Mr Tree proceeded on the assumption that if the respondent had detected an abnormality, his response to that finding was not appropriate, that is, it was a breach of his duty of care to the appellant. At a later stage in his address, Mr Tree said that there had been no fight at all about the proposition that saying "We'll keep an eye on it" would not have been an appropriate response to the discovery of a breast abnormality, and there was no dispute that what should have been done in that event was to send the appellant for ultrasound, a mammogram and a biopsy.
By the conclusion of each counsel's closing address, the only substantive matter in contention between the parties in the context of the respondent's duty of care to the appellant and his breach of that duty was whether he had detected an abnormality in her breast on 26 January 2002. Whilst no formal concession had been made by the respondent that if the jury found against him on that question, it followed that he had breached his duty of care to the appellant, no other conclusion was realistically open.
Against this background the appellant submits that the learned trial judge should have given the jury complete directions with respect to the law concerning a duty of care and how that law relating to breach of duty applied to the facts of this case. It is submitted that the directions should have reflected the well-known passage in the Council of the Shire of Wyong v Shirt (1980) 146 CLR 41 at 47 and 48, and the decision in Rogers v Whitaker (1992) 175 CLR 479 at 483.
This submission gives too little weight to the real issues for the jury. The respondent's duty of care to the appellant had been admitted and there was no dispute between the parties that if the jury found that the respondent had detected a gritty area in the appellant's breast on 26 January 2002, then the respondent had breached his duty of care to the appellant. In these circumstances, directions with respect to the duty of care and its content would have made no difference. The directions were not necessary in order to guide the jury to a decision on the real issues before them. The learned trial judge's directions included a memorandum to the jury which relevantly read as follows:
"Breach of Duty
6.1The plaintiff will succeed in showing a breach of duty if she satisfies the jury that it was more probable than not that the defendant failed to exercise reasonable care in examining, diagnosing, advising, managing and treating her in one or more of the ways stipulated in paragraph l7 of her statement of claim.
6.2What comprises reasonable care is a matter of fact and may be determined by a comparison between what the defendant did, and what reasonably competent practitioners would have done in the same circumstances.
6.3The standard expected of a reasonably competent practitioner is neither that of a specialist or the Mayo Clinic, nor a practitioner exercising basic skills and services in an isolated or small community.
6.4The standard is one as assessed by the jury in its judgment to be comparable to modern contemporary standards as practised in the light of an advanced society such as that existing in Tasmania in 2002.
6.5The standard is sometimes expressed as 'peer' evaluation and the opinions of other members of the medical profession are relevant to the exercise of judgment by the jury."
In directing the jury on breach of duty, the learned trial judge said that if they concluded that the respondent had found an abnormality in the appellant's breast on 26 January 2002:
"… it's relatively non-controversial here that he ought to have followed more. And if he didn't it's a breach of a duty. Why do I say that. Because what comprises reasonable care as a matter of fact may be determined by a comparison between what he did and what reasonably competent practitioners would have done in the same circumstances – and they all tell us, triple test. He tells us triple test."
As there had been no formal concession as to a finding of breach of duty in those circumstances, the learned trial judge was obliged to leave this issue to the jury. In the unusual circumstances of this case, this did not make it necessary for the learned trial judge to give more detailed directions than he did. Even if the learned trial judge failed in his duty to explain the law as expounded in Council of the Shire of Wyong v Shirt (supra) and Rogers v Whitaker (supra) it could not be said that such failure could have resulted in a substantial wrong or miscarriage of justice for the purposes of the Supreme Court Civil Procedure Act 1932, s50(1)(a).
We turn to the appellant's claim referable to 24 October 2002 consultation. It was recognised that the appellant suffered no injury or damage as a consequence of the respondent's alleged breach of duty on this occasion and the trial proceeded on the basis that if the breach was established, the appellant should be awarded nominal damages of $100. This claim was a very minor aspect of the appellant's action against the respondent. In these circumstances it is not surprising that the focus of the appellant's complaints in relation to the learned trial judge's directions on duty of care and breach of duty was her claim referable to 26 January 2002 consultation. Insofar as her complaints also encompass his directions referable to 26 October 2002 consultation, it is sufficient to say that no inadequacy or error in the directions could have resulted in a substantial wrong or miscarriage of justice. The grounds relating to breach of duty must fail.
Did the learned trial judge err in his directions with respect to causation?
Under normal circumstances, when an action for negligence and breach of contract fails as a result of a jury returning a verdict for the defendant on a question as to whether there has been a breach of duty, it would not be necessary to consider a ground of appeal suggesting a misdirection in relation to causation. In this case, however, there were abnormal circumstances. In relation to the consultation of 26 January, the appellant was required to establish on the balance of probabilities that there had been a breach of duty on the part of the respondent, and that that breach caused her to suffer damage. In his memorandum to the jury, the learned trial judge dealt with the issue of causation before he dealt with the issue of breach of duty. Paragraph 5.1 of that memorandum read as follows:
"If the jury is affirmatively satisfied that there was a causative link between the event of 26 January … and the injury, the plaintiff is required to establish that the defendant owed her a duty of care [sic] in tort and/or contract. In the circumstances of this case the duties are identical."
It was admitted on the pleadings that the respondent owed the appellant a duty of care in tort and in contract. It is evident that the learned trial judge intended to suggest to the jury that they should consider the issue of causation first, and if they found for the appellant on that issue, that they should then consider whether the respondent had breached his duty of care to her. There was an inherent difficulty in following this course as it required the jury to determine whether the appellant's injury was caused by an omission before they had determined whether there had been any such omission at all. Both senior counsel at trial urged the learned trial judge to direct the jury in the same order as the questions were written, but he declined to do so. We are unable to perceive his reason for adopting the course that he did.
During his summing up, his Honour made it clear to the jury that they had the right to consider the question of breach of duty before considering the question of causation. However a jury has the right to consider the issues in a case in any order that it chooses: Stanton v R (2003) 77 ALJR 1151 at 1157, 1159 – 1160. It may well be that the jury, or some jurors, considered the question of causation first. His Honour did not make it clear what the jury should do if they considered causation first, and determined that issue in favour of the respondent. The questions they were required to answer were apparently worded without that route to a verdict in mind.
Question 3, which related to causation, was so worded that an answer was required only in the event of a finding having been made in favour of the appellant on question 1, which related to breach of duty. Question 1 did not ask whether the respondent had breached a duty of care. It asked whether the jury made a finding that the respondent had breached a duty of care. One logically possible explanation for the jury's negative answer to question 1 was that the jury considered the question of causation, decided it in favour of the respondent, found it unnecessary to make a finding one way or the other as to breach of duty, read question 1 literally, and therefore answered it in the negative. It asked whether the jury had made a finding that the respondent had breached a duty of care. If they had found it unnecessary to make a finding as to the breach of duty issue, a negative answer to question 1 could have been considered appropriate. Because a negative answer to question 1 could have been reached by that route, we think it necessary to consider the ground of appeal relating to causation on its merits.
Mr Porter QC submitted that the learned trial judge misdirected the jury as to causation in a number of respects. His arguments can be summarised as follows:
· If a breach of duty results in an increased risk of injury to a plaintiff and that risk eventuates, causation is taken to be established unless the defendant establishes that the breach had no effect, or that the risk would have eventuated and caused the damage in any event: Chappel v Hart (1998) 195 CLR 232 at 237, 238, 247 – 248, 257 – 259 and 272 – 273; Naxakis v Western General Hospital (1999) 197 CLR 269 at 270, 312; Rosenberg v Percival (2001) 205 CLR 434 at 461 – 462; Crockett v Roberts [2002] TASSC 73 at 12, par63. The learned trial judge did not so direct the jury in relation to the claim that the appellant's cancer resulted from the respondent's breach of duty. He thereby may have unnecessarily burdened the jury with fact-finding tasks. He directed the jury along those lines in relation to the alternative claim that the alleged breach of duty had resulted in the loss of chance of a better outcome, but did so inaccurately.
· His Honour explained that causation was established if a breach of duty was a cause of, or materially contributed to, damage, but erred by not explaining that a contribution was material unless it was negligible.
· No concession was made at the trial by the respondent as to causation. It therefore remained an issue for the jury to determine.
· It is possible that the verdict was a result of the jury deciding against the appellant on the causation issue, and that they would not have so decided if they had been properly instructed on that issue.
We disagree in relation to the last of these points which is crucial to the submission. The significant issues at the trial, as identified by counsel for both parties, were (a) whether the respondent observed an abnormality in the appellant's breast during the consultation of 26 January; and (b) whether appropriate treatment soon after that consultation could have prevented the development of the appellant's cancer, rather than merely providing her with a chance of a better outcome. There was a substantial body of expert evidence to the effect that appropriate treatment soon after 26 January would have resulted in either a better outcome or the avoidance of cancer. There was no evidence supporting the proposition that any breach of duty on 26 January might have made no difference to the state of the appellant's health. It follows that any error or omission in his Honour's directions as to causation cannot have resulted in a substantial wrong or miscarriage of justice. The ground of appeal relating to causation must fail.
Did the learned trial judge properly instruct the jury with respect to the standard of proof?
The applicable standard of proof is prescribed by the Evidence Act 2001, s140, in the following terms:
"(1) In a civil proceeding, the court must find the case of a party proved if satisfied that it has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account ¾
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged."
Although not speaking of that statutory provision, the following authoritative statement of the law, taken from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 – 171 is apposite:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. (See, eg, Hocking v Bell (1945) 71 CLR 430, at p 500; Rejfek v McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear (Briginshaw v Briginshaw (1938) 60 CLR 336, at p 362; Helton v Allen (1940) 63 CLR 691, at p 701; Hocking v Bell (1944) 44 SR (NSW) 468, at p 477 (affirmed in Hocking v Bell (1945) 71 CLR, at pp 464, 500); Rejfek v McElroy (1965) 112 CLR, at p 521; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at p 539), or cogent (Rejfek v McElroy (1965) 112 CLR, at p 521), or strict (Jonesco v Beard [1930] AC 298, at p 300; Briginshaw v Briginshaw (1938) 60 CLR, at p 362; Helton v Allen (1940) 63 CLR, at p 711; Hocking v Bell (1944) 44 SR (NSW), at p 478 (affirmed in Hocking v Bell (1945) 71 CLR, at pp 464, 500); Wentworth v Rogers (No 5) (1986) 6 NSWLR, at p 538) proof is necessary 'where so serious a matter as fraud is to be found' Rejfek v McElroy (1965) 112 CLR, at p 521. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct. (See, eg, Motchall v Massoud [1926] VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J. commented in Briginshaw v Briginshaw (1938) 60 CLR, at p 362; and see, also, Helton v Allen (1940) 63 CLR, at p 711
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ...'.
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading."
Compliance with the foregoing law required the learned trial judge to direct the jury that before they could answer the first question in the affirmative, they must be satisfied that it was more probable than not that the respondent breached the admitted duty of care in one or more respects pleaded in the statement of claim, a copy of which each juror had, par17(a), (b) and/or (c). Those paragraphs are set out above in par29.
If the jury answered question 1 in the affirmative, the only other element of the tort of negligence that had to be established on the balance of probabilities was that the appellant suffered some loss, injury or damage as a result of the found breach of duty. Insofar as the appellant's case was based upon breach of contract, an affirmative answer to question 1 made out her case and entitled her to recover such damages as the jury considered appropriate. Question 2(a) referred to the statement of claim, par18(a). That subparagraph alleged that the appellant suffered breast cancer and lung cancer and associated physical and mental sequelae. Upon the evidence, the only rational answer to that question was "Yes". Question 2(b) referred to the statement of claim, par18(b), which did not actually plead an injury, but proceeded on the assumption that the appellant had suffered breast cancer and pleaded that the appellant lost the chance of a better outcome that would have attended upon earlier diagnosis and treatment of her breast cancer. Thus, implicit in the question was whether the appellant had lost that chance of a better outcome. Again, upon the evidence, there seemed to be no doubt that this was the case.
On the issue of loss, injury and damage, the appellant's case was that as a result of the respondent's breach of duty of care the DCIS became invasive or, alternatively, even if the DCIS was invasive on 26 January, had the respondent not breached his duty, the appellant would have had a better outcome from the treatment that she would have received. Whether the former or the latter was the case was a controversial issue which question 3 sought to address.
Soon after the commencement of his directions, the learned trial judge stated that the burden on the appellant was to "prove her case to your satisfaction on the balance of probabilities". He distinguished the civil standard from the criminal standard of proof and said, "It is dangerous for me to try and explain that concept in any more detail".
Apart from the reference to the appellant's "case", instead of a reference to the questions that the jury was required to answer, that direction is unobjectionable. The learned trial judge gave no further direction on the standard of proof until the jury returned after having been in retirement for about three hours. Upon their return, the foreman of the jury said that he had a question "on the – our understanding of the balance of probabilities". The foreman went on to say:
"As we understand it there's really three options, one is probable, another is not probable and a third is equally probable for a particular point. The question is, where something is seen to be equally probable does that then defer to being negative?"
The learned trial judge observed that it was "a very difficult and complex question", although it does not appear to us to be so. The learned trial judge said that he would deal with the question by inviting counsel "to put forward their positions, which you [the jury] will hear and I'll try and see if we can give you a direction that is of assistance to you …". However, instead of hearing counsel, the learned trial judge went on to say:
"Balance of probabilities is a matter of judgement - I'm speaking to counsel now, I'm sorry - but the historic approach is whether the plaintiff, or in this case the defendant in contributory negligence, can establish his or her case on the balance of probabilities, that is that a component, that is an event or some part of it, if it's internal reasoning it is more probable than not that the event occurred. But that's simply part of the reasoning process, at the end of the day the question becomes on the balance of probability has the plaintiff established her case, that is it is more likely or more probable that her case is established than not. Now there is a refinement within that which is if they be evenly balanced, which may be in a way a conceptual problem, whether that tilts it one way or the other and my suggested answer to that is if it be evenly balanced you have more work to do because if you're left with, how you've put it, equally probable that doesn't define your verdict. If in real terms equally probable does not permit us to return a verdict one way or the other then you are a jury which is unable to reach a decision. Now I may be wrong, that's - and I'm perhaps acting in haste, but it seems to me that's the answer to the third question that you've given me. If they are exactly balanced well in one respect the plaintiff hasn't proved her case. Well you still have to then return a verdict, we find for the defendant. You'd need to then be able to return that verdict in the safety of your own conscience but you would know that the answer is the plaintiff has not proved her case, or on contributory negligence the defendant has not proved his case."
The learned trial judge then asked counsel if they wished to comment. Neither made any submission and generally accepted what the learned trial judge had said. The learned trial judge then said to the jury "That's as best as I can give you" and the foreman responded:
"No, what you've said, your Honour, was our understanding and you've clarified it, thank you."
It was Friday afternoon, and after a discussion with the jury about them taking their notes home for the weekend, the court adjourned until Monday.
It is clear from the passage that we have set out that although the learned trial judge began by "thinking aloud to counsel", as one of the counsel on the appeal put it, he concluded by directing the jury.
In our view the reasoning in that passage is confusing and the law as stated at one part is incorrect. At the start of it, the learned trial judge referred to "a component" and "an event or some part of it", without making clear to what he was referring. The learned trial judge stated that the question is whether, on the balance of probabilities, the appellant has established her case, but her case included an assessment of damages if liability was found in her favour. The question really was whether, on the balance of probabilities, the appellant had established the affirmative to the first three questions that the jury were required to answer. Then followed a reference to a refinement to the basic proposition which his Honour called a "conceptual problem". Why there was a reference to a refinement, and if there was a refinement, why it was described as a conceptual problem is not clear. There followed an incorrect statement of the law, "If in real terms equally probable does not permit us to return a verdict one way or the other then you are a jury which is unable to reach a decision". With respect to this statement, his Honour said that he may be wrong. He then correctly said (except for the reference to "in one respect"), "If they are exactly balanced, well in one respect the plaintiff hasn't proved her case. Well you still have to then return a verdict, we find for the defendant."
So the jury were given two contradictory directions, one immediately after the other. One of them contained legal error. Although the jury foreman said it clarified the matter, it may have been that the direction was not properly understood by all the jurors.
Counsel for the appellant at trial considered the matter over the weekend, wrote to the learned trial judge's associate expressing concern that the redirection on Friday afternoon might be taken to also refer to quantum of damage, and sought a further direction to clarify this. Upon the resumption of the trial on Monday morning, the learned trial judge said that he, too, had been thinking about the jury's question over the weekend and proceeded to give them a further direction. It lasted for 17 minutes. Although lengthy, it is necessary that it be set out in full:
"Members of the jury, I'm not satisfied that my question - sorry, my answer to your question on Friday did your question justice. I've thought about it in the weekend and I have thought about how I better could answer your question about balance of probability and what happens in certain events, so if you'll just have a little patience I just want to suggest an approach that might assist you, it might not, and don't think that I'm being presumptuous or trying to intrude into your area, it's just trying to help in a process of reasoning I suppose which over time I'm probably trained in.
The question of balance of probabilities works at different levels in a trial or has work to do at various stages of deliberations and the primary question, 'Am I satisfied on the balance of probabilities that the plaintiff has made out her case', is too big a question to start with, so we park that, that's the big question at the end. But at the second level the balance of probabilities can work this way. I need to determine what happened or what occurred at an event, in the same way as my earlier example of a car with the signal and five other things happening and you've got to work your way through what happened. Well in some ways the process is a bit like a jigsaw puzzle or a mosaic, in other words we take facts that we have little difficulty with and we put them into - on the table, so to speak, and we see what we can make of that and then we might wrestle with some other questions and be affirmatively satisfied about those and we put them into the jigsaw and the mosaic. So here the easy questions would be, was there a consultation at all, or go back to my example, had I put the indicator on at all? So was there a consultation at all? Yes. Where was it? Okay. When was it? How long did it last? What was its purpose? What are the protocols that exist for the purpose of that consultation and examination? What are the varying accounts that are given about the events? What do we know afterwards about what somebody might have said or done, or the length of time before the plaintiff goes back. So we begin to take pieces of material that we can be confident with and then we have some pieces that we're not so confident with, so we might need to look elsewhere. For example, we might bring another piece of material back which says, 'Well is there evidence sufficient to show that she had some form of cancer at that time', does that help us? No. Yes. Maybe. We work through there. And we begin then to use inferences or reasoning from what we have and what we might add, or we might take something off, look at that mosaic or that jigsaw to then ask a question on what I have found, am I satisfied on the balance of probabilities that this event occurred in this form?
Let's just leave that alone for a moment because it has - the balance of probabilities has work to do at a different level, a deeper level or tertiary level, and let's see how it works there. We might come back to that question of an event. You might have answered that event, yes, in which case you're into a new area of cause and effect, damages. Maybe you might care to leave that first question alone for a little while and look at evidence elsewhere, or you might at that stage have reached a conclusion, no, I'm not satisfied as to the plaintiff's case on the event and you might care to stop. So we've got a number of paths that open to you at the next level. Well one question you might ask at the next level is this, if you haven't answered no already, am I satisfied on the balance of probabilities that the plaintiff did not have metastatic cancer as of 22 January, because you'll see in my written directions and in 7.4, and it's a hard concept to get to when we put in the word 'was not present' - have any of you got the memorandum there? I'll read it if that's all right.
In order to determine whether a breach of duty by the defendant caused the breast and associated cancers the jury must be satisfied on the balance of probabilities metastatic cancer was not present -
We've put that - we've reversed it, she's got to show that it wasn't present.
- on 26 January 2002 since no breach of duty is alleged before that date.
And I'll just read 7.5 and then go back to 7.4:
If the jury are satisfied that cancer, invasive or ductile, was present on 26 January 2002 then the jury may consider the issue of loss of chance. There may -
Not necessarily would be.
There may be differing outcomes depending on whether the jury's satisfied that either or both was present.
Now I don't know whether this question's troubling you or not and I don't want you to tell me but I'm using it as an example of inferential reasoning, balance of probabilities and what happens when something comes out in your mind equally probable. It may be that on 7.4 the evidence of Professor Tattersall, Dr Ward and Mr Hart makes it evenly balanced and with the best will in the world those honest, I think you could say, and experienced witnesses took you into their thinking but could not take you much further and it may be on 7.4 that you could reach a conclusion, but I don't know. I don't - I'm not affirmatively satisfied but it's equally probable that she did have.
Well if you reached that there is another path that you must nevertheless go down. Let's suppose you reached 7.4 with a - I'm going to do something that I'm going to regret - Australia v Uruguay at full time - but you can't say. Well then you might care for the moment to go to the next question, did she have DCIS and/or invasive cancer on 22 January? Well the difference in the evidence there between that and metastatic cancer, there is different evidence, there's a greater weight of evidence to suggest that she had at least DCIS cancer and/or invasive cancer on 22nd January, there was a difference as to metastatic cancer.
But if you ask that question then you go to the next one. I'm not satisfied that she had metastatic cancer, nor am I satisfied that she did not. Well in that case you would find on that one question that she hadn't established it, but before you answer that question you can ask another one. If she had DCIS and invasive cancer and metastatic cancer would the outcome have differed? Now there the evidence is, I guess, problematic but you could reason this way, if she had only DCIS and/or invasive cancer was the probability that a mastectomy would have worked then and she would have gone on to lead a normal life? Okay, so balance of probabilities, that's where I get to, a normal life. If I accept, or she has not shown that it didn't exist, that she had metastatic cancer as well it doesn't end the question because the question then might go this way, if she had DCIS, invasive and metastatic cancer as of 22 January would she nevertheless have recovered with a combination of mastectomy and of chemotherapy? So you have another area of evidence to look at. Again it's maybe a bit problematic but it seems some of the evidence seems to suggest that if there were a small pool of cancer that had escaped or it was confined in a different area and hadn't spread as far or become as deeply colonised then chemotherapy might have worked and if that's the case she would have been cured and gone on to live a normal life. In other words you get to the same ending or the same result, whichever of the paths you took, so then you may not need to go back and answer the metastatic cancer because you've chosen another path. Or that path might have taken you in a different direction and that direction might suggest we don't know, she hasn't satisfied me that she would have been a well woman after that, but she would have had a foreshortened life.
So by that reasoning process for 7.4 and 7.5 we have three possible outcomes. One, no metastatic cancer, likelihood of recovery by breast surgery pretty good. Two, don't know about that, that's even. Has she established or am I satisfied on the balance of probabilities that if she had metastatic cancer at 22 January it was more localised, less aggressive and unlikely to be as colonised or as firm in its spread and its aggressiveness. So I'm satisfied on that path that she would have recovered with breast surgery and chemotherapy and probably satisfied that she wouldn't have got pregnant and she might have - I think that's equivocal in the sense that she still had chemotherapy whilst pregnant but it had to be administered in a special way and that's the one that leaked, but in any event that's there. So you see - or the third possibility, or the third outcome might be no, I'm not satisfied about that on the balance of probabilities, I'm looking at a foreshortened life.
Now you see how that question that you asked has so many layers and depths to it, but it doesn't stop there because there is a fourth level or layer at which balance of probabilities has work to do. I've dealt with probability of foreshortened life but let's go to what I'll call my point five because it works there as well and let's take what I think is a relatively easy example. When we come into damages we're looking at predictions and probabilities and possibilities and we really are being asked to perform impossible tasks, predicting one's future life. But let's test that evenly balanced question that you so carefully put to me. Let's take the sum of seventy thousand dollars. Now it's not quite clear what it is for an overseas treatment, it seems on the evidence that it's some experimental procedure that can be carried out in Australia but it's expensive and it's experimental. Now we had but two lines of evidence on that and we have no expert guide aspect on that. Well you might come out on that evenly balanced and you might then say on the balance of probabilities am I affirmatively satisfied about the seventy thousand dollars? No. It might be evenly balanced the other way, it might be worth a risk but I'm not satisfied the evidence establishes it. Positively? No.
So you see how we're using the same test at varying levels of the evidence and in a way the smaller the question the easier the process. Take the seventy thousand dollars, if it comes out exactly level, not a millimetre apart, then it's a no. That's an easier process of course because we're dealing with a very small area of fact or evidence, but nevertheless that's how this balance of probabilities works and that's how it works when you come to those conclusions. Then you go back to your primary question. Am I satisfied on the balance of probabilities that the plaintiff has made out her case? If yes then what follows from that, and if no what follows from that.
Now I've thought about structuring that in a way that helps, it might have, it might not have. I should tell you though that simply because I have suggested a line of reasoning or examples of how inferences and conclusions can be drawn from a jigsaw game or a mosaic or how you, when faced with one question that has an answer, you can often ask a different question and proceed to a - in this case you might proceed to an identical outcome or you might proceed to a different outcome, how that process of reasoning and inferences can be used by a fact finder, that's you in this case."
Read as a whole, the further direction on Monday morning was confusing and, in a number of respects, erroneous.
The opening reference to the balance of probabilities working at "different levels" and having "work to do at various stages of deliberations" was embellished throughout the further direction, even to the extent of his Honour directing the jury that there was a fourth level at which the balance of probabilities had "work to do". At an early stage in the direction there was a reference to establishing the "plaintiff's case", but nothing was said to instruct the jury that the appellant carried the onus of satisfying the jury that it was more probable than not that "Yes" was the correct answer to the first three questions the jury had to answer.
Upon hearing the further direction, the jury may well have thought that the appellant was required to establish on the balance of probabilities every fact upon which she relied. The confusion created by the further direction was exacerbated by frequent and unhelpful references to a jigsaw, a mosaic, an event and a hypothetical car accident. The learned trial judge did not explain to what he was referring when he used the word "an event". After directing the jury that the balance of probabilities had work to do at "a deeper level or tertiary level", his Honour again referred to "an event" and said, "You might have answered that event, yes, in which case you're into a new area of cause and effect, damages." Such a direction was misleading and confusing.
The reference in the further direction to par7.4 in the learned trial judge's written memorandum is a reference to a written direction concerning damages. It was confusing to refer to the issue of damages in the context of a further direction on the balance of probabilities because the jury would not have been considering the directions given in par7.4 unless they were already satisfied on the balance of probabilities that the answers to the first three questions were in the affirmative.
The following passage in the further direction is illustrative of the confusion created by that further direction:
"But if you ask that question then you go to the next one. I'm not satisfied that she had metastatic cancer, nor am I satisfied that she did not. Well in that case you would find on that one question that she hadn't established it, but before you answer that question you can ask another one. If she had DCIS and invasive cancer and metastatic cancer would the outcome have differed?"
Neither counsel upon the hearing of the appeal were able to make a submission as to the meaning of the further direction. Insofar as the further direction applied to assessing quantum of damages, it was erroneous. Once it had been established that it was more probable than not that a breach of the respondent's duty of care caused the appellant to suffer recoverable damage, the valuation of the future loss had to be calculated by reference to the chance that it would have occurred, even if that chance was less than probable.
The further direction concluded with a reference to the appellant proving "her case" on the balance of probabilities. On no occasion during the whole of the summing up did the learned trial judge instruct the jury that the burden of proof on the appellant related to questions 1 – 3 that the jury had to answer.
Counsel for the respondent was concerned that the further direction might be taken to apply to future losses for he said:
"Your Honour, the only point I would make is that it's my submission that the jury needs to be made quite clear that the balance of probability means that on a particular issue that doesn't involve the future then it is imperative that it be satisfied on the balance of probabilities in favour of the person who bears the onus on that issue before it can find the issue proved."
As a result, the learned trial judge gave the following further direction:
"Let me just tease that out a little bit, if I may. That's right, what Mr Procter said is right. Now sometimes not every primary fact has equal significance and if I just give you the obvious example, the length of the consultation, you might be satisfied - you may not be satisfied that it went more than twenty minutes, you might be. Well you might have no work to do or you ignore it, that doesn't necessarily determine the outcome, so we're working on that on central facts Mr Procter says you can't affirmatively accept that as a fact unless you are affirmatively satisfied in favour of the person who presented that case and here that test cuts both ways, it's the plaintiff's responsibility to prove her case in breach of duty and outcome, it's for the defendant to prove - if the question of contributory negligence arises that same onus works in reverse and it's for the defendant to prove that."
Although counsel for the respondent did not demur with respect to that last direction, it did not deal with his concern, added further confusion to that which had already been created, and repeated the need for the appellant to prove "her case".
On the appeal, counsel for the respondent accepted that the learned trial judge's further direction was erroneous and confusing, but submitted that last part of the direction he gave the jury on Friday afternoon, which we have set out earlier, was correct and that nothing that was said on Monday in the further direction diminished the jury's proper understanding of the onus and standard of proof that the appellant carried. We do not accept that proposition. The direction given on Friday was in part correct and in part incorrect and the confusion that may have caused was exacerbated by the further direction given on Monday.
The jury was not properly instructed as to the standard of proof. Clear and concise directions were called for because one of the most important issues, if not the most important issue, on the trial, was whether the appellant had discharged the onus she carried that the respondent was in breach of his admitted duty of care. We are of the opinion that this failure resulted in a substantial miscarriage of justice within the meaning of the Supreme Court Civil Procedure Act 1932, s50(1)(a). This ground, being ground (iii) of the notice of appeal is made out.
Taken as a whole, was there a likely miscarriage of justice by reason of confusing directions by the learned trial judge?
Having regard to the conclusion we have reached with respect to ground (iii) and the reasons for reaching that conclusion, it follows that this ground is also made out.
However, the argument of counsel for the appellant in relation to this ground was based not just on the directions as to the balance of probabilities, but also on the directions relating to several other matters. With one exception, any confusion on the part of the jury as to those other matters could not have made any difference to the jury's decision to answer question 1 in the negative. Any confusion as to matters that did not impact upon that answer could not have resulted in a substantial wrong or miscarriage of justice.
The one exception relates to comments made by the learned trial judge in relation to the consultation on 26 January 2002 and the respondent's notes relating to that consultation. His Honour spent some time reminding the jury of the relevant evidence and the arguments in relation to it. With respect, some of what his Honour said is difficult to understand and follow. An instance of this appears from what his Honour said in relation to the question of how readily a general practitioner detecting a breast abnormality would take action in relation to that abnormality:
"The defence also - sorry, the plaintiff also sought to get this from the doctor. There be a difference between what ought to be and what we do sometimes. And when you come to exercise judgement as a clinician, it be a lonely path. It be one where there are edges, fault lines, bits down the middle, either/or. That's what my training is. There be nothing certain. And so one of the tests that doctors use is, we'll call it, the suspicion index. So if you've got a low suspicion, but it's benign, the system tells you to rack up the low suspicion into a bit higher suspicion. Why? Because you're probably right, it is benign. But statistics tell us that if you're young you're less likely, much less likely, to be afflicted with cancer. But if you are, probably because of the age, it's more vehement in its attack. You're at greater risk. So lower probability is low suspicion, the greater the danger outcome is the other end of that graph. It's got to take low suspicion probably not very much actually. Outcome, highly dangerous, if you're that age, move the level of suspicion up.
That, I think, is how the defence approached the evidence of - and in that judgement it be a lonely world. And here the plaintiff says he may have been on the border of judgement, but that's what protocols are there for. You're not - you shouldn't be standing on the border alone. If that's there, you go to plan B. That's, I think, how that - they use that evidence."
In our view there is a risk that the jury were confused by his Honour's comments in relation to the evidence relevant to question 1. That is a risk that we have taken into account in reaching a conclusion as to this final ground of appeal. It must succeed.
Orders
The foregoing are the reasons of the Court for making the following orders pronounced on 10 February 2006:
· Appeal allowed.
· Judgment entered on 5 December 2005 is set aside.
· There will be a new trial of action no 618/2004.
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