East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic - [2019] WASCA 18

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   EAST METROPOLITAN HEALTH SERVICE -v- JANE ELIZABETH POPOVIC as executrix of the will of EMIL POPOVIC [2019] WASCA 18
CORAM:   MURPHY JA
BEECH JA
ALLANSON J

HEARD:   8 OCTOBER 2018
DELIVERED          :   31 JANUARY 2019
FILE NO/S:   CACV 102 of 2017
BETWEEN:   EAST METROPOLITAN HEALTH SERVICE
Appellant
AND
JANE ELIZABETH POPOVIC as executrix of the will of EMIL POPOVIC
First Respondent
PETER PANAGOULIAS by next friend FIONA AVERIL PANAGOULIAS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   O'NEAL DCJ
Citation: PANAGOULIAS (by his next friend FIONA AVERIL PANAGOULIAS) -v- THE EAST METROPOLITAN HEALTH SERVICE [No 4] [2017] WADC 118
File Number             :   CIV 2791 of 2010

Catchwords:

Evidence - Rule against hearsay - Implied assertions - Extent to which hearsay rule excludes evidence of implied assertions

Tort - Negligence - Medical negligence - Patient suffered severe brain injury due to meningitis and due to delay in administering antibiotics - Whether medical practitioner breached duty of care to patient - Whether inference should be drawn that practitioner failed to give appropriate advice to client - Whether causation was proved - Whether if patient had attended hospital earlier antibiotics would have been administered earlier

Legislation:

Nil

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant	:	G R Donaldson SC
First Respondent	:	R Weinstein SC & G P Bourhill
Second Respondent	:	No appearance

Solicitors:

Appellant	:	State Solicitor's Office
First Respondent	:	Avant Law
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87
Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1
Bolton v The State of Western Australia [2007] WASCA 277; (2007) 180 A Crim R 191
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Kamleh v The Queen [2005] HCA 2; (2005) 279 ALJR 541
Karam v The Queen [2015] VSCA 50
Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359
Myers v Director of Public Prosecutions [1965] AC 1001
Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372
Panagoulias (by his next friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118
Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297
Pinkstone v The Queen [2003] WASCA 66; (2003) 140 A Crim R 83
Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558
Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257
R v Benz [1989] HCA 64; (1989) 168 CLR 110
R v Hendrie (1985) 37 SASR 581
R v MCJ [2017] QCA 11
R v Perry [2011] QCA 236
R v Su [1997] 1 VR 1
Ratten v The Queen [1972] AC 378
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158
RKT v The State of Western Australia [2017] WASCA 13
Subramaniam v Public Prosecutor [1956] 1 WLR 965
T (a child) v The Queen (1998) 20 WAR 130
Teper v The Queen [1952] AC 480
University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

MURPHY & BEECH JJA:

Introduction

In September 2007, Mr Peter Panagoulias had surgery with the aim of removing a brain tumour. Three weeks after the surgery, Mr Panagoulias developed bacterial meningitis from which he suffered a severe brain injury. As a result, he has sustained permanent disabilities that will require 24‑hour monitoring and supervision for the rest of his life.
By his next friend, Mr Panagoulias sued the appellant, East Metropolitan Health Service (East Metropolitan), which is legally responsible for the liabilities of Royal Perth Hospital (RPH) where Mr Panagoulias was admitted on 6 October 2007. Mr Panagoulias also sued his neurosurgeon, Mr Popovic, and East Metropolitan relied upon this claim by third party proceedings.
The primary judge upheld Mr Panagoulias' claim against RPH and dismissed the claim against Mr Popovic.[1] The judge found that, as against Mr Popovic, neither breach nor causation had been established.
[1] Panagoulias (by his next friend Fiona Averil Panagoulias) v The East Metropolitan Health Service [No 4] [2017] WADC 118 (primary reasons).
East Metropolitan does not challenge the finding that it is liable in negligence. East Metropolitan's appeal challenges the judge's dismissal of Mr Panagoulias' claim against Mr Popovic.
Relevantly, East Metropolitan's case on breach was and is founded on a telephone conversation between Mr Panagoulias and Mr Popovic. It was and is common ground that Mr Popovic's duty of care required him to give certain advice to Mr Panagoulias during that conversation. There was no direct evidence of the content of the telephone conversation from either of the parties to it. The issue as to breach was and is whether an inference could be drawn that Mr Popovic failed to give the required advice.
East Metropolitan advances five grounds of appeal. Ground 1 challenges a ruling that Mrs Panagoulias' evidence, of what her husband told her, and did not tell her, about the telephone conversation, immediately after it took place, was led for an impermissible hearsay purpose. Ground 2 challenges an intermediate finding of fact relevant to the question of breach of duty. Ground 3 challenges the judge's failure to draw the inference that the advice Mr Popovic was required to give was not given. Ground 4 challenges the judge's conclusion that any breach by Mr Popovic did not cause loss or damage. Ground 5 relies on the success of grounds 3 and 4 and seeks an apportionment of liability as between Mr Popovic and East Metropolitan.
For the reasons that follow, which essentially reflect the judge's reasons, we would uphold the primary judge's findings on both breach and causation. Consequently, the appeal must be dismissed.

Background facts

As the primary judge noted, there was very limited first‑hand testimony concerning the relevant events. Mr Panagoulias' severe brain injury meant that he could not give evidence. Mr Popovic had died in March 2011. Only one member of RPH staff was called to give evidence.[2]
[2] Primary reasons [4].
The following matters were not substantially in dispute at trial or on appeal.

Diagnosis and first surgery

In December 2005, after having experienced headaches for some time, Mr Panagoulias was diagnosed as having a craniopharyngioma, which is a benign tumour near the pituitary stalk in his brain.[3] He was referred to Mr Popovic who determined that the tumour needed to be removed.[4]
[3] Primary reasons [1], [9], [11].
[4] Primary reasons [11].
On 23 January 2006, Mr Popovic performed a left supra orbital (above the eye socket) craniotomy and a subtotal resection of the tumour, removing about 90% of the tumour mass.[5] Mr Panagoulias made a good recovery.[6]

The second surgery and attendant complications

[5] Primary reasons [12].

[6] Primary reasons [12] - [16].

The following year, the headaches began to return, along with some vision problems, and Mr Panagoulias again consulted Mr Popovic.[7] Mr Popovic advised that it would be necessary to deal with the remaining part of the tumour.[8]
[7] Primary reasons [18].
[8] Primary reasons [18].
On 14 September 2007, Mr Panagoulias underwent a second surgery (the second surgery) at the Mount Hospital, in which Mr Popovic planned to access the tumour transphenoidally (through the nose and sphenoid sinus).[9] The second surgery was abandoned due to bleeding after Mr Popovic nicked Mr Panagoulias' carotid artery.[10]
[9] Primary reasons [19].
[10] Primary reasons [20].
The lacerated artery was treated by 'tamponade' (by compression on the wounded area).[11] A piece of muscle and a piece of fat were taken from Mr Panagoulias' abdomen and used, along with surgical materials, to fill the sphenoid sinus.[12] Another smaller perforation in the cribriform plate was also packed with a small fat graft.[13]
[11] Primary reasons [21].
[12] Primary reasons [21].
[13] Primary reasons [21].
Mr Panagoulias was moved from the Mount Hospital to RPH where he was placed in the intensive care unit.[14] He was given an angiogram which found that the bleeding had stopped but also that Mr Panagoulias had suffered a pseudo-aneurysm as a result of the laceration of his carotid artery.[15] This meant that bleeding was contained within the surrounding tissues of the vessel, but a risk of rupture and uncontrolled bleeding remained.[16] An attempt was made to seal off the pseudo‑aneurysm, which was only partly successful.[17] Before Mr Panagoulias was discharged on 20 September 2007, the tamponade was not removed.[18] At the time of his discharge, Mr Panagoulias' condition was unremarkable except for a fairly constant and continuous mucous discharge from his nose.[19] He was advised not to blow his nose.[20]
[14] Primary reasons [24].
[15] Primary reasons [24].
[16] Primary reasons [24].
[17] Primary reasons [25].
[18] Primary reasons [26].
[19] Primary reasons [30].
[20] Primary reasons [30].
As a result of the surgery he had undergone, there was reason to assume that Mr Panagoulias was at risk of infection, including bacterial meningitis.[21] It was agreed at trial, by all parties and by the experts, that Mr Panagoulias later contracted bacterial meningitis. The judge observed that the medical experts largely agreed or assumed that he did so by virtue of a cerebrospinal fluid (CSF) leak, as a result of a puncture of the dura mater during the second surgery.[22]
[21] Primary reasons [29].
[22] Primary reasons [28] - [29], [213]. See also primary reasons [140].
Following the second surgery, it was not uncommon for Mr or Mrs Panagoulias to call Mr Popovic to discuss Mr Panagoulias' condition or treatment.[23] Phone records revealed that they called Mr Popovic ten times between 16 and 24 September 2007.[24]
[23] Primary reasons [36].
[24] Primary reasons [36].
Further investigation and treatment of the pseudo-aneurysm was necessary.[25] Mr and Mrs Panagoulias attended a follow-up appointment with Mr Popovic on 26 September 2007.[26] At this consultation, Mr Popovic explained the second surgery that had been performed, the problem that had arisen that made it necessary to abandon the procedure and that a piece of fat had been removed from Mr Panagoulias' stomach and inserted through his nose to stop the blood loss from the lacerated artery.[27] Mr Popovic also advised of his concern about the pseudo-aneurysm and said that it was necessary to treat this condition before any further surgery was done for the tumour.[28]

The events of 5 October and the morning of 6 October

[25] Primary reasons [31].

[26] Primary reasons [31].

[27] Primary reasons [31].

[28] Primary reasons [33].

A follow-up angiogram was arranged for 5 October 2007.[29] There was nothing unusual about Mr Panagoulias' condition when Mrs Panagoulias picked him up after the procedure at 3.45 pm.[30] The primary judge found that it was most improbable that there was any presence of meningitis bacteria in Mr Panagoulias' CSF prior to late that evening.[31]
[29] Primary reasons [33] - [34].
[30] Primary reasons [35].
[31] Primary reasons [126].
A little later, while he was cooking dinner, Mr Panagoulias sneezed and something that appeared to be a lump of 'tissue stuff' came out of his nose.[32] This concerned Mr Panagoulias and his wife, who had observed it.[33] In the presence of his wife, Mr Panagoulias called Mr Popovic at 4.07 pm for between two and a half to three minutes (the telephone conversation).[34] Mrs Panagoulias' evidence about the telephone conversation is the subject of ground 1.
[32] Primary reasons [35].
[33] Primary reasons [35].
[34] Primary reasons [38].
Mrs Panagoulias remembered hearing her husband explain about the sneeze and the piece of 'fatty tissue' that came out of his nose, and she remembered her husband asking, 'What shall I do?' She did not hear anything said by Mr Popovic.[35]
[35] Primary reasons [38].
After the telephone conversation, Mr Panagoulias told his wife that he had been advised to take the thing that had been expelled from his nose and put it in a jar of water in the refrigerator, so that Mr Popovic could observe it at their next consultation.[36] She said that her husband did not mention anything else that Mr Popovic had said.[37] Otherwise, Mr Panagoulias appeared 'quite normal' to his wife and she noticed 'nothing out of the ordinary' when they went to sleep that night at around 9.00 pm.[38]
[36] Primary reasons [39].
[37] Primary reasons [39].
[38] Primary reasons [39], [41].
Between 2.00 am and 3.00 am, Mrs Panagoulias woke up and found her husband complaining of having a headache.[39] Having taken some Panadeine Forte, he was uncomfortable and struggling to get back to sleep.[40] Mrs Panagoulias' evidence was that severe headaches had been a regular part of Mr Panagoulias' life for years, for which Panadeine Forte was his usual medication.[41]
[39] Primary reasons [42].
[40] Primary reasons [42].
[41] Primary reasons [43].
Between 5.00 am and 6.00 am, when their infant daughter woke up, Mrs Panagoulias left her husband in the bed with the thought that he might be able to 'sleep better' on his own.[42] When she came back to check on him, she could see that there was no improvement and he continued to complain that his headache was very bad.[43] Mr Panagoulias told her that his headache was getting worse and that Panadeine Forte was not helping.[44]
[42] Primary reasons [44].
[43] Primary reasons [44].
[44] Primary reasons [44].
Although Mr Panagoulias did manage to have some sleep in the early morning hours, he took more Panadeine Forte at about 8.30 am.[45] Not long afterwards, he asked his wife to call Mr Popovic.[46] She did so, at 9.07 am. She told him that her husband had had a very uncomfortable night, that he was in a lot of pain and that he had a really bad headache.[47] Mr Popovic responded by telling Mrs Panagoulias to take her husband to the Emergency Department (ED) at RPH and that he would telephone ahead to let RPH know they were coming.[48] Mr Popovic did not refer to any advice offered to Mrs Panagoulias the previous afternoon.[49]
[45] Primary reasons [44].
[46] Primary reasons [44].
[47] Primary reasons [45].
[48] Primary reasons [45].
[49] Primary reasons [45].
The primary judge found, as the telephone records show, that Mr Popovic telephoned RPH and then, immediately afterwards, the neurosurgical registrar Dr Kern.[50] His Honour was satisfied that these telephone calls occurred 'in advance of the arrival of Mr and Mrs Panagoulias at RPH',[51] being made at 9.28 am and about 9.30 am, respectively.[52] His Honour also found that it was more than probable that, at this time, Mr Popovic advised Dr Kern of Mr Panagoulias' history, including the recent surgery, the complications that had been experienced and the information he had received from Mrs Panagoulias.[53]

Treatment at RPH

[50] Primary reasons [51], [208].

[51] Primary reasons [208].

[52] Primary reasons [51], [70].

[53] Primary reasons [290].

Mrs Panagoulias took her husband to the ED at RPH and presented at the triage window at 9.53 am.[54] A triage assessment was recorded at that time and was completed by 10.02 am.[55]
[54] Primary reasons [50], [53].
[55] Primary reasons [53], [264].
At around 10.14 am, Mr Panagoulias was seen by the resident medical officer, Dr Wardman.[56] The trial judge was critical of the length of time that elapsed before Dr Wardman spoke to Dr Kern, given Dr Kern's discussion with Mr Popovic at about 9.30 am.[57] A 12.00 pm note of Dr Wardman recorded the fact that, at about that time, he and Dr Kern had finally had a discussion.[58] That note recorded that Mr Popovic had advised that, in effect, a CT scan was not necessary as it was unlikely that there had been bleeding from a subarachnoidal haemorrhage, rather, there was a 'need to exclude meningitis or make a clinical decision'.[59]
[56] Primary reasons [264].
[57] Primary reasons [290] ‑ [291].
[58] Primary reasons [283].
[59] Primary reasons [283].
More than an hour after Dr Wardman had made his notes, Mr Panagoulias was seen by the consultation specialist physician in emergency medicine, Dr Wilson.[60] A CT scan of Mr Panagoulias' head was not booked until after Dr Kern called Dr Wilson at around 2.00 pm to 2.15 pm.[61] At some stage, Dr Kern attended.[62] Around 3.00 pm, he performed a lumbar puncture, being the primary means of quickly excluding or confirming the presence of bacterial meningitis.[63]
[60] Primary reasons [270].
[61] Primary reasons [288].
[62] Primary reasons [292].
[63] Primary reasons [287].
Notes were recorded by each attending doctor as well as the relevant nurses. Aspects of those notes are detailed below at [72] to [77].
At 5.30 pm, more than seven and a half hours after presenting at ED, Mr Panagoulias received his first treatment for a bacterial infection, being 2 g of intravenous Meropenem antibiotic.[64] Mr Panagoulias was admitted to a ward at 6.40 pm.[65] Around 8.08 pm, he was found to be unresponsive and one side of his body was paralysed.[66] Shortly after that, he lost consciousness, an emergency team was called, and Mr Panagoulias was intubated and ventilated.[67] He received a treatment dose of hydrocortisone at 8.50 pm.[68] By that time, the bacterial meningitis had caused Mr Panagoulias severe and irreversible brain damage.[69]

The consequences for Mr Panagoulias

[64] Primary reasons [59], [110].

[65] Primary reasons [111].

[66] Primary reasons [111].

[67] Primary reasons [111].

[68] Primary reasons [59].

[69] Primary reasons [111].

A number of problems later arose either as a direct consequence of Mr Panagoulias' severe acquired brain injury or because of the tumour, complicated by the brain injury.[70] Mr Panagoulias has been required to undergo further surgery and numerous treatments and is on regular medication.[71] He will never work again and requires constant care.[72] In February 2010, he was transferred to Brightwater, an extended care facility, and has, with little exception, remained there.[73]
[70] Primary reasons [146]
[71] Primary reasons [141] - [147], [156].
[72] Primary reasons [181].
[73] Primary reasons [149].

The claims at trial

East Metropolitan admitted that it inherited the assets and liabilities of the Minister for Health who, at the relevant time, was vicariously liable for the actions of RPH staff. It was not in dispute that, in all material respects, RPH staff were acting within the scope of their employment.[74]
[74] Primary reasons [183].
Mr Panagoulias claimed that Mr Popovic and the RPH ED staff owed him a duty to exercise due care, skill and diligence in the provision of medical care, advice and treatment.[75] This was not seriously disputed by either Mr Popovic or East Metropolitan. The primary judge found that the existence of a duty to take reasonable care in providing medical treatment could not be doubted.[76]
[75] Primary reasons [182]; statement of claim [40], [43].
[76] Primary reasons [182].
At trial, Mr Panagoulias alleged four breaches of duty by Mr Popovic.[77] As the appeal relates to only one of them (the third), it is only necessary to refer to that allegation of breach. The judge summarised it in the following way:[78]
Given the nature of the surgery as well as other matters that suggested an increased risk of infection, and [Mr Panagoulias'] report to him late on the afternoon of 5 October 2007 of the sneezing out of what must have been one of the fatty plugs used in the operation on 14 September, Mr Popovic should have advised [Mr Panagoulias] 'to immediately attend the ED of RPH if he developed other symptoms, including a more severe headache, stiff neck, high temperature or photophobia'. In oral submissions counsel for [Mr Panagoulias] accepted that the advice might also reasonably include a direction that in any of these circumstances [Mr Panagoulias] should first call Mr Popovic, but if he was not contactable, to go to hospital.
[77] Primary reasons [185].
[78] Primary reasons [185].

Mr Panagoulias' case was that Mr Popovic's failure to provide the required warning or advice resulted in a delay in Mr Panagoulias' arrival and treatment at RPH. That, in turn, caused delay in the appropriate antibiotic treatment of Mr Panagoulias' bacterial meningitis, to the point that severe and irreversible brain damage was caused.[79]
[79] Primary reasons [186].
Against East Metropolitan, Mr Panagoulias alleged that the staff at RPH failed to act in a timely way to diagnose and treat his bacterial meningitis. In particular, he alleged that RPH staff failed to conduct appropriate tests to diagnose or exclude bacterial meningitis, thereby allowing the meningitis to reach the stage where it caused severe and irreversible brain damage.[80]
[80] Primary reasons [187] ‑ [188].
Mr Panagoulias' case against both East Metropolitan and Mr Popovic was that, but for their neglect, causing treatment to be delayed, he would have recovered without long-term harm.[81] Neither defendant suggested that, if factual causation was proved, it should be excused by consideration of 'scope of liability'.[82]
[81] Primary reasons [363].
[82] Primary reasons [355].
By third party proceedings, each defendant relied on Mr Panagoulias' allegations as against the other.[83]
[83] Primary reasons [189].

The primary reasons: the claim against East Metropolitan

The primary judge upheld Mr Panagoulias' claim against East Metropolitan. His Honour found that RPH staff breached the duty owed to Mr Panagoulias by failing to act in a timely way to diagnose and treat the bacterial meningitis.[84] The judge found that, had reasonable care been exercised, staff would have commenced intravenous antibiotics and corticosteroids by no later than 12.30 pm.[85]
[84] Primary reasons [300].
[85] Primary reasons [349].
The primary judge was satisfied that, had Mr Panagoulias received proper treatment by 3.00 pm, he would have avoided a long‑term adverse outcome.[86] Therefore, his Honour was satisfied that the failure by RPH staff, to treat Mr Panagoulias in a timely way, was a necessary condition, for the purposes of s 5C(1)(a) of the CLA, of the severe brain injury he acquired.[87]
[86] Primary reasons [455].
[87] Primary reasons [456].
The primary judge awarded damages against East Metropolitan for loss of earning capacity (discounted for contingencies), past gratuitous services plus interest, future needs, future care and pain, suffering and loss of amenities of life.[88] His Honour also awarded special damages plus interest for medical refunds, as well as past pharmaceutical, out of pocket and gap medical expenses.[89]
[88] See primary reasons [475] - [595].
[89] Primary reasons [472] - [473].
The primary judge entered judgment for Mr Panagoulias in the amount of $11,634,527.70 (including $1,200,000 in trustee fees) plus interest on the portion of that amount not comprising trustee fees. There is no challenge to his Honour's finding of liability or to the assessment of damages.

The primary reasons: the claim against Mr Popovic[90]

Breach

[90] Due to Mr Popovic's death prior to trial, Mr Panagoulias' claim was brought against Mr Popovic's executrix. For convenience, at times, we will refer to this claim as against Mr Popovic.

As we have said, the judge rejected each of the four allegations of breach made against Mr Popovic. On appeal, only the rejection of the third is challenged. Consequently, we will only outline the primary judge's reasons in relation to that allegation, which his Honour described as the 'real issue of breach'.[91]
[91] Primary reasons [212].
Mr Panagoulias alleged that, on being told by him, at about 4.00 pm on 5 October 2006, that he had sneezed out a piece of what appeared to be fatty material, Mr Popovic breached the duty of care owed to him by failing to advise him 'to immediately attend the ED of RPH if he developed other symptoms, including a more severe headache, stiff neck, high temperature or photophobia'.[92]
[92] Primary reasons [185(3)], [212]; statement of claim [54(f)].
Mr Popovic accepted that, on learning about the sneeze, he was required to advise Mr Panagoulias appropriately and tell him 'to be vigilant for changes in his condition and to seek further assistance if there were any such changes'.[93] At [231] of his Honour's reasons, the primary judge found that Mr Popovic was obliged to 'tell [Mr Panagoulias] to be vigilant for any change in his condition, and that he immediately report any noticeable change in the discharge from his nose such as clear fluid or blood, or elevated temperature, or neck stiffness or any severe or unusual headache'.[94] Therefore, the main issue was whether Mr Panagoulias had established that Mr Popovic had, in fact, not given the appropriate advice.[95]
[93] Primary reasons [218], [230].
[94] Primary reasons [231].
[95] Primary reasons [232].
As has already been noted, neither of the parties to the telephone conversation were available to give evidence as to its contents. Consequently, the case put by Mr Panagoulias and East Metropolitan against Mr Popovic was circumstantial.[96] Three matters were relied upon to support an inference that Mr Popovic did not give the appropriate advice. The primary judge summarised them as follows:[97]
1.When Mr Panagoulias spoke to Mr Popovic, after the sneeze of 5 October 2007, Mr Panagoulias did not tell his wife of any advice to the effect that he was to watch for symptoms and go to hospital in certain circumstances.
2.When Mr Panagoulias had a headache, in the early morning hours of 6 October 2007, he did nothing beyond taking Panadeine Forte, that is, he did not go to the hospital.
3.When Mrs Panagoulias called Mr Popovic at 9.07 am to report the problems her husband was having, Mr Popovic did not then say anything to the effect of 'But I told him yesterday…'.
East Metropolitan relies on these same three circumstances on appeal.
[96] Primary reasons [232].
[97] Primary reasons [233].
As outlined below, the primary judge found that these circumstances, individually or in combination, did not lead him to find that Mr Popovic did not give the appropriate advice.[98] This was so even if his Honour accepted that Mrs Panagoulias' evidence of what her husband told her about the telephone conversation was admissible.[99] Consequently, his Honour was not satisfied that Mr Popovic had breached his duty by failing to give the appropriate advice.[100] Ground 3 challenges this conclusion.

Circumstance 1 - Mr Panagoulias not informing his wife of the advice

[98] Primary reasons [243], [263].

[99] Primary reasons [243].

[100] Primary reasons [263].

The primary judge described Mrs Panagoulias' evidence of the telephone conversation as:
(1)her having heard her husband explain about the sneeze and the piece of 'fatty tissue' that came out of his nose and his enquiry, 'what shall I do?', but not hearing Mr Popovic's side of the conversation;[101] and
(2)that, after the telephone conversation, Mr Panagoulias did not mention that Mr Popovic had said anything other than advising him to put the sneezed specimen in a jar of water, for observation at their next consultation.[102]
[101] Primary reasons [38].
[102] Primary reasons [39].
Mr Panagoulias invited the primary judge to infer, from Mrs Panagoulias' evidence that her husband said nothing else about the call, what the judge characterised as an 'implied assertion' of Mr Panagoulias that Mr Popovic gave no advice of the kind required.[103] In finding that this involved impermissible hearsay use of the evidence, his Honour reasoned as follows:[104]
[103] Primary reasons [235] - [236].
[104] Primary reasons [237] - [241].
[237]… What I am being asked to take from Mrs Panagoulias' evidence of what was said, and more importantly not said by her husband, falls within the category of an assertion of fact sought to be implied from conduct that is not intended to assert a particular fact.
[238]The difficulty with this evidence cannot be skirted by referring to the 'state of mind of [Mr Panagoulias]' or the fact that the advice said not to have been offered was 'not relied on for its truth'. On a proper analysis, the conduct of [Mr Panagoulias] is being advanced to prove an assertion by [Mr Panagoulias] as to [his] knowledge of what passed between him and Mr Popovic.
[239]As counsel for [East Metropolitan] acknowledged in oral submissions, the kind of 'telephone exception to hearsay' said to arise from the decisions of the High Court in Walton v The Queen (1989) 166 CLR 283 and Pollitt v The Queen (1992) 174 CLR 558 does not much assist with what is sought to be relied on here.
[240]Guidance as to the extent to which it may be possible to have any confidence about the circumstances in which a statement or conduct of this character may be admitted is found in the decision of Ritz Hotel Ltd v Charles of The Ritz Ltd (1988) 15 NSWLR 158 (McLelland J) (172):
'… The court must in my opinion endeavour to determine whether, considered in relation to the inference in question, the relevant document, utterance or other conduct has the character of an objective event or transaction on the one hand, or of a subjective assertion (involving knowledge, belief, opinion or conclusion) on the other. Only if the second characterisation is more appropriate in relation to the inference in question, will the inference be excluded by operation of the hearsay rule.'
[241]The inference I am being asked to draw is effectively an assertion about [Mr Panagoulias'] knowledge of his prior conversation with Mr Popovic. It follows that, in my view, the evidence of Mrs Panagoulias as to what her husband said and did not say in the course of the telephone conversation with Mr Popovic, and what her husband did not say afterwards, is not admissible to prove as an inferred fact that Mr Popovic did not offer appropriate advice to her husband. (original emphasis)
Ground 1 challenges the inadmissibility ruling in [241].
On the assumption the evidence was admissible, the primary judge identified the following obstacles to accepting this first circumstantial argument, as a basis for finding that Mr Popovic had not given the appropriate advice:
1.It was plain that either Mr Panagoulias did not tell Mrs Panagoulias everything that was discussed in the telephone conversation or that she did not recall more than the advice about placing the sneezed specimen in a glass jar.[105]
2.There was a 'fair degree of doubt' as to whether Mrs Panagoulias recalled all that was said by Mr Panagoulias in the course of the telephone conversation.[106] The primary judge observed that the call went for two and half to three minutes and the part that Mrs Panagoulias could remember could scarcely have occupied 30 seconds.[107] His Honour also noted that Mrs Panagoulias was caring for an infant child at the time and it was entirely possible she was not then attending to the conversation.[108]
3.The primary judge found that the retention of the specimen was something far out of the ordinary that called for immediate action and interrupted ordinary domestic events.[109] His Honour considered it entirely possible that anything else that might have been worth saying about the telephone call was overtaken by events.[110]

Circumstance 2 - Mr Panagoulias not attending hospital

[105] Primary reasons [245].

[106] Primary reasons [244].

[107] Primary reasons [244].

[108] Primary reasons [235].

[109] Primary reasons [245].

[110] Primary reasons [245].

Mr Panagoulias submitted that he woke with 'a severe headache' sometime between 2.00 am and 3.00 am and that, had he been properly advised by Mr Popovic, that would have caused him to go to hospital at that time.[111]
[111] Primary reasons [246].
The primary judge concluded at [258] that:
… the true severity of this headache only became apparent to Mr Panagoulias between 8.00 and 9 o'clock in the morning when, awaking with the headache, he found it had increased or was increasing in severity and was not relieved by the further Panadeine Forte that he took. It is likely that it was at that stage that he recognised that he was experiencing something out of the ordinary, and asked his wife to call Mr Popovic. That, of course, would be consistent with acting on proper advice.
Consequently, his Honour did not accept that this second circumstance sustained Mr Panagoulias' allegation that Mr Popovic failed to give the appropriate advice. We outline his Honour's reasons in more detail below, in dealing with ground 2, which challenges this conclusion.

Circumstance 3 - Mr Popovic's 'non-reaction'

The primary judge was not persuaded that Mr Panagoulias' 'non‑reaction', which his Honour described as 'a kind of implied admission by silence', sustained the inference invited by East Metropolitan.[112] His Honour considered that, given Mr Panagoulias was potentially facing a medical emergency, it was unnecessary, and would have been churlish, for Mr Popovic to remonstrate Mrs Panagoulias in the way submitted.[113] Although this conclusion is not the subject of a specific ground of appeal, in the context of ground 3, East Metropolitan invites this court to take a different view of the significance of this circumstance.

Causation

[112] Primary reasons [262].

[113] Primary reasons [262].

Although his Honour found that Mr Popovic had not breached his duty to Mr Panagoulias, the primary judge went on to consider whether, if he had, that breach had caused Mr Panagoulias' harm.
Mr Panagoulias argued that, if Mr Popovic had given the appropriate advice:
1.he would have heeded that advice and arrived at the ED at around 3.00 am, he would have been treated by 10.30 am and he would have likely avoided serious harm;[114] and
2.even if he had waited a few hours to see whether the Panadeine Forte resolved the headache, he still would have arrived at the ED at about 7.00 am, at which point he would have been treated by different doctors and would have received a CT head scan and/or lumbar puncture within 3 hours, there being appropriate levels of medical staff with a variety of skills available during the evening shift.[115]
[114] Primary reasons [373].
[115] Primary reasons [374].
The primary judge rejected these arguments as speculative and found that, even if Mr Popovic had not provided the appropriate advice, it had not been proved that that lack of advice was a cause of Mr Panagoulias' harm.[116] Ground 4 challenges this conclusion. His Honour's reasons are outlined below in dealing with ground 4.
[116] Primary reasons [375] - [381].

Grounds of appeal

East Metropolitan appeals on five grounds, which are to the following effect:
1.The primary judge erred in law at [241] in ruling that Mrs Panagoulias' evidence, as to what Mr Panagoulias did not say after the telephone conversation, was inadmissible as hearsay to prove as an inferred fact that Mr Popovic did not offer the appropriate advice to Mr Panagoulias in that conversation.
2.The primary judge erred in fact at [258] in finding, against the weight of the evidence, that Mr Panagoulias did not suffer a severe headache at 2.00 am or 3.00 am on 6 October 2007.
3.The primary judge erred in law at [263] in inferring that, in the telephone conversation, Mr Popovic advised Mr Panagoulias that, if he was to suffer from a severe headache, he should immediately attend hospital.
4.The primary judge erred in law at [381] in inferring that, even if Mr Popovic did not give the appropriate advice in the telephone conversation, this failure did not cause the harm suffered by Mr Panagoulias on 6 October 2007.
5.Consequent upon grounds 1 - 4, the primary judge erred in law and in fact in dismissing East Metropolitan's claim for contribution from Mr Popovic. East Metropolitan invites this court to determine the contribution that should be made by Mr Popovic.
Although ground 1 concerns a question of admissibility, it is convenient to deal with the other grounds before turning to ground 1. That is because our reasons on the other grounds explain why we would dismiss the appeal, and would do so regardless of the admissibility of the evidence the subject of ground 1.
We begin with ground 2.

Ground 2: a severe headache?

Ground 2 asserts that the primary judge's finding that Mr Panagoulias did not suffer a severe headache at 2.00 am or 3.00 am on 6 October 2007 was against the weight of the evidence. The nature of this ground makes it necessary to outline, in some detail, relevant aspects of the evidence at trial and the judge's reasons.

The evidence at trial

Broadly speaking, two categories of evidence at trial were relevant to this ground: Mrs Panagoulias' evidence and the medical evidence.

Mrs Panagoulias' evidence

In her evidence‑in‑chief, in the context of explaining how the tumour was diagnosed, Mrs Panagoulias said that as long as she had known Mr Panagoulias, he had had headaches.[117]
[117] ts 129.
Mrs Panagoulias also gave evidence that, after the first operation, Mr Panagoulias' headaches started to come back in the later part of 2006.[118]
[118] ts 132.
After saying that she and her husband had gone to bed at about 9.00 pm on 5 October 2007, Mrs Panagoulias gave the following evidence:[119]
[P]robably maybe 2, 3 o'clock in the morning, I was woken up because he was up and complaining about having quite a severe headache. He'd got up and taken some - he told me he'd taken some Panadeine Forte for - for the headache, but he - I could see that he was uncomfortable. There was a lot of jumping around, and he was struggling to - to settle back to sleep.
All right. So he'd gotten up, taken some Panadeine Forte. He'd come back to bed; still unsettled?---Yeah.
What happened then?---It was a bit of an unsettled night. At about - when Anna woke up in the morning - she used to wake up quite early, so probably between 5 and 6 I got up and I left him in the bed so that he could have some time alone in the bed without anyone in the bed, and I thought he might sleep a bit better. But when I came back to check on him, I could see that, you know, there - there was no improvement, and he told me that his headache was so bad. It was really - really getting to him, and so he said, 'Can you please phone Dr Popovic for me?' So I did that. (emphasis added)
[119] ts 140.
Mrs Panagoulias' evidence was that she attended her husband's appointments with Mr Popovic before and after the first surgery,[120] and before and after the second surgery.[121] She took an intense interest in the health and treatment of her husband and paid attention to what was said at the doctors' appointments which she attended with him.[122] She and her husband discussed what had been said to them by doctors in as much detail as they could, as neither of them fully understood everything that had been said.[123] Mrs Panagoulias' impression was that her husband was sharing with her everything that he was going through in the course of his treatment with Mr Popovic.[124]
[120] ts 129 ‑ 130.
[121] ts 132 ‑ 134, 200.
[122] ts 203.
[123] ts 203.
[124] ts 204.
In cross‑examination by counsel for East Metropolitan, Mrs Panagoulias accepted that her husband was awake with a severe headache at about 2.00 am or 3.00 am, that its severity was plain from the way Mr Panagoulias reacted to it, and that it appeared that its onset was sudden.[125]
[125] ts 204 ‑ 205.
In cross-examination by counsel for Mr Popovic, the following exchange occurred:[126]
[126] ts 226 - 228.
You said yesterday that you were aware that your husband awoke with a headache at about 3 am, correct?---Yeah.
You described it yesterday as a severe headache?---Yeah.
Your husband, as you said yesterday, had a long history of headaches, correct?---Yeah.
Those headache[s] went all the way back to when you first met him?‑‑‑Yeah.
You said yesterday that he took Panadol for those headaches. Do you recall saying that?---Yeah.
In fact he often took Panadeine Forte for those headaches, isn't that - isn't that right?---If - if they were bad. If he had a bad headache he'd take Panadeine Forte.
…
But you don't deny that your husband from time to time, even as recent as August 2007, was taking Panadeine Forte for his headaches?---He did take Panadeine Forte from time to time if it was a bad headache.
It was one of his regular medications, was it not?---I don't remember it being a regular one but he did have it if he had a - if it was really bad.
He had it in the house, did ne [sic] not?---It - I can't recall if it was there all the time but it was - he did take it from time to time.
On admission for the second operation in September 2007 - I'll call that the second operation - during his admission your husband complained of headaches, are you aware of that?---He could well have complained of headaches.
Well, I want to suggest to you that he complained on headaches - of headaches on his admission before the operation and then after the operation on 15 September 2007, 18 September 2007 and 19 September 2007?
…
Okay, that's - in fact your husband, as you said yesterday, had had headaches since you'd known him?---Yeah.
And his headaches were really part of your life with him, weren't they?---Yeah, he did have a lot of headaches.
Those headaches usually got better or settled down with Panadeine Forte - - - ?---Yeah, yeah.
- - - or Panadol?---Yeah.
After a little bit of time, is that right?---Yeah.

Mrs Panagoulias agreed that she and her husband had had an understanding with Mr Popovic that they ought to call him if anything out of the ordinary or surprising happened.[127] In re‑examination, Mrs Panagoulias said that she and her husband were not in the habit of telephoning Mr Popovic in the middle of the night or on the weekend.[128]
[127] ts 233.
[128] ts 237.
In cross-examination, the following exchange took place:[129]
[129] ts 234 - 235.
You said in your evidence yesterday that he had a severe headache?‑‑‑Yeah, he did.
I want to suggest to you that he had a headache, just a headache, at that point. What do you say about that?---It seemed to be – well, he was taking Panadeine Forte. That's - - -
He was taking Panadeine Forte for it. Correct?---Yeah.
But then he went back into bed. Correct?---Yeah, and he tried to sleep.
And he tried to sleep?---Yeah.
You went back to sleep?---Yeah.
Correct?---Yeah.
That was not something that particularly alarmed you because your husband often had headaches that required Panadeine Forte?---Yes.
Correct?---Yeah.
And in fact they usually settled with Panadeine Forte?---Yeah; yeah, that's right; yeah.
And it wasn't until quite a few hours later, about three hours later, when you got up when Anna woke up, you tiptoed out of bedroom so that your husband could get some rest. Is that correct?---Yeah.
He didn't say anything else to you. Is that right?---No, he was just uncomfortable, jumping around, yeah.
You could feel him tossing and turning during the night?---Yeah; yeah.
But he didn't say anything to you. Correct?---No.
And it wasn't until about 8.30, I want to suggest to you, or thereabouts when your husband said to you something like, "I have a very severe headache now." Is that right?---Well, he was saying his headache that he had in the night was getting worse. It wasn't going away. The Panadeine Forte wasn't touching – he said it wasn't touching it, you know.
So the headache, as you understood it, had got a lot worse?‑‑‑Yeah.
Through the night?‑‑‑Yeah.

The medical evidence

The primary judge referred to the following medical evidence.
A triage nursing note, made when Mr Panagoulias presented at 9.53 am, recorded 'pain - headache - occipital' (occipital referring to the back of the skull).[130] Mr Panagoulias described a 'now severe headache' to the triage nurse that was a '10' on a scale of 10 and that Panadeine Forte taken at 8.30 am had had little effect.[131]
[130] Primary reasons [53]; exhibit 1, 494.
[131] Primary reasons [54]; exhibit 1, 494.
Further nursing notes were made at 10.20 am which recorded that Mr Panagoulias was complaining of a 'severe throbbing headache'.[132] The note also said 'went to bed with headache - woke with worse headache this A.M. No relief from Panadeine Forte'.[133]
[132] Primary reasons [57]; exhibit 1, 495.
[133] Primary reasons [57]; exhibit 1, 495.
At 11.00 am, Dr Wardman recorded a complaint of an 'occipital headache increasing overnight (unable to sleep)';[134] an occipital headache of 'gradual onset'.[135] Dr Wardman recorded Mr Panagoulias' presenting complaint as including 'headache increasing greater than usual over the last 8 hours and now 6/10'.[136]
[134] Primary reasons [63], [252]; exhibit 1, 502.
[135] Primary reasons [86]; exhibit 1, 502.
[136] Primary reasons [63], [252]; exhibit 1, 502.
Dr Kern, the neurosurgical registrar, recorded a complaint of a 'sudden severe headache at 2.00 am'.[137]
[137] Primary reasons [104], [253]; exhibit 1, 510.
Dr Wilson recorded Mr Panagoulias' presenting complaint as 'sudden onset of severe headache (top of the head)' at 3.00 am, and 'took … Panadeine Forte with some relief (able to go back to sleep) but headache persisted'.[138] She also recorded 'Suddenness of headache onset is a concern'.[139] In cross-examination, Dr Wilson observed that '[t]here's no comment there about the onset of the headache' in relation to the nursing note of 10.20 am.[140] Later, in cross-examination, Dr Wilson also commented that '[Dr Wardman's 11.00 am note] does talk about the progress, but it doesn't mention the onset'.[141]
[138] Primary reasons [86], [89], [90], [253]; exhibit 1, 508.
[139] Primary reasons [96]; exhibit 1, 509.
[140] ts 471.
[141] ts 482.
Later nursing notes were made, including:[142]
14.00            Patient complaining of head pain 7/10 - drifting back to sleep
…
16.25            Pain 7/10. 2.2 milligrams intravenous morphine given
16.30            Pain 4/10. 2.5 milligrams intravenous morphine given
16.40            Pain 7/10 but is asleep. Woken easily

The primary judge's reasons

[142] Primary reasons [58]; exhibit 1, 496.

As we have explained, the primary judge did not accept that the fact that Mr Panagoulias did not attend the hospital between 2.00 am or 3.00 am, or between 5.00 am and 6.00 am when he awoke again, supported an inference that Mr Popovic had not given him the appropriate advice.
The primary judge observed that the characterisation of Mr Panagoulias' headache as 'severe' or 'quite severe' came from some references in hospital records and from Mrs Panagoulias' evidence which described what her husband told her.[143]
[143] Primary reasons [247].
As to Mrs Panagoulias' evidence, the judge made the following observations and findings:
1.Mrs Panagoulias' evidence had an obvious evidentiary problem of being a second-hand assertion of fact from a party who had not given evidence.[144] There was a real prospect that her recollection of what occurred was influenced to some extent by the terrible events that followed.[145] Further, the fact that the events occurred almost 10 years prior tended to detract from the weight that could be given to Mrs Panagoulias' evidence.[146]
2.Mrs Panagoulias did not observe or recall that her husband was experiencing anything out of the ordinary for him, headaches, including those of a severity to be normally treated with Panadeine Forte, being a regular feature of his life.[147] The primary judge found that severe headaches had been a regular part of Mr Panagoulias' life for years and, at times, he had taken up to eight Panadeine Forte tablets per day.[148]
3.After taking Panadeine Forte in the early morning hours of 6 October, Mr Panagoulias obtained some relief, in that he was able to go back to sleep, but the headache persisted.[149]
4.The judge accepted Mrs Panagoulias' evidence that (1) after being woken by her husband around 2.00 am or 3.00 am, she recalled a 'restless night'; (2) between 5.00 am or 6.00 am she left her husband alone in bed with the thought that he 'might sleep a little better'; and (3) when she checked on him later that morning, just before 9.07 am when she called Mr Popovic, he reported that 'the headache was really getting to him and asked [her] to call Mr Popovic'.[150]
[144] Primary reasons [248].
[145] Primary reasons [248].
[146] Primary reasons [248].
[147] Primary reasons [249]. See also primary reasons [43].
[148] Primary reasons [43].
[149] Primary reasons [249].
[150] Primary reasons [257]. See also primary reasons [44].
The judge's conclusions in relation to the medical evidence may be summarised as follows:
1.The primary judge concluded, from notes made by Dr Wilson, the triage nurse and another nurse, that Mr Panagoulias did manage to go back to sleep after taking Panadeine Forte around 2.00 am - 3.00 am.[151]
2.In the notes made by RPH staff, there was considerable variation as to the nature and time of onset of the 'severe' headache and its progression.[152]
3.The primary judge observed that there were some troubling differences between what Dr Wilson said she observed and recorded, as against the medical records made by others.[153] His Honour noted inconsistency between Dr Wilson's description, of the location of the headache and the nature of the onset of the headache, and that recorded by the triage nurse and Dr Wardman.[154] The primary judge placed little weight on Dr Wilson's observations.[155]
4.The primary judge stated that he did not have much confidence in the notes taken by Dr Kern and did not accept that Mr Panagoulias was necessarily the source of the information he recorded.[156]
5.The primary judge preferred Dr Wardman's notes, recording an occipital headache 'increasing overnight (unable to sleep)' and 'headache increasing greater than usual - over last 8 hours now 6/10' to the notes of Dr Wilson and Dr Kern recording a 'sudden onset severe headache' at 3.00 am and 2.00 am, respectively.[157]
6.From the RPH notes, it was difficult to be confident of much beyond the facts that (1) Mr Panagoulias was first troubled with the headache in the early morning hours; (2) it was painful enough to warrant taking Panadeine Forte; (3) he was then able to get some further sleep; and (4) when he awoke later the headache was worse and a further dose of Panadeine Forte brought no relief.[158]
[151] Primary reasons [251].
[152] Primary reasons [250].
[153] Primary reasons [77].
[154] Primary reasons [89], [253].
[155] Primary reasons [77].
[156] Primary reasons [254].
[157] Primary reasons [252] - [255].
[158] Primary reasons [256].
The judge concluded, in [258], that this aspect of Mr Panagoulias' (and East Metropolitan's) case must be rejected. For convenience, we repeat that paragraph:
It is inevitable that the experience of the 'severity' of a headache is a highly personal thing, capable of being influenced by any number of factors ranging from the ordinary experience of an individual, to their level of stoicism, to the time and circumstances in which they experience the event, and the human willingness to want to believe in a desired state of affairs. I conclude that the true severity of this headache only became apparent to Mr Panagoulias between 8.00 and 9 o'clock in the morning when, awaking with the headache, he found it had increased or was increasing in severity and was not relieved by the further Panadeine Forte that he took. It is likely that it was at that stage that he recognised that he was experiencing something out of the ordinary, and asked his wife to call Mr Popovic. That, of course, would be consistent with acting on proper advice.
At [259], the judge then dealt with a submission made by East Metropolitan to the effect that the content of the appropriate advice should have been simply that if a 'severe headache' developed, Mr Panagoulias should go to hospital. The judge described that as an oversimplification of the evidence of the relevant expert, Dr Sheridan. The judge summarised Dr Sheridan's evidence as being, relevantly, that, in the circumstances, the patient needed to be alerted to changes in their condition. That was said in the context of an awareness that a patient in Mr Panagoulias' position was likely to already have chronic headaches and that it was for changes in condition that one must be looking.[159]

East Metropolitan's submissions

[159] Primary reasons [260].

East Metropolitan's submissions are to the following effect:
1.In effect, the judge found at [258] that Mr Panagoulias' headache at 2.00 am or 3.00 am was not severe.[160]
2.Mrs Panagoulias was plainly in a better position than anyone else to assess whether a headache experienced by her husband was severe or not, given her intimate involvement in her husband's health issues over time.[161]
3.The effect of Mrs Panagoulias' evidence was that the headache was both sudden and severe.[162] Mrs Panagoulias rejected the contention that the headache, at its onset, was not severe.[163]
4.Both Dr Wilson and Dr Kern recorded the headache in their notes as being severe.[164] While there is some variation in the notes as to whether the onset of the headache was sudden or gradual, there is no variation as to the severity of the headache.[165]
5.The judge's finding that the headache at 2.00 am or 3.00 am was 'painful enough to warrant taking Panadeine Forte' supports a characterisation of the headache as severe.[166]
6.The basis on which the judge discounted the weight of Mrs Panagoulias' evidence about the severity of the headache was not put to Mrs Panagoulias and so was an erroneous basis of reasoning.[167]
7.The severity of the headache was to be understood in Mr Panagoulias' circumstances on 5 October. He had expelled material from his nose that may have been packing for the dura. Any non‑trivial headache should have been the catalyst for going to hospital or calling Mr Popovic.[168]
8.It is not to the point that Mr Panagoulias had experienced many severe headaches in the past. While that might have meant that this headache was not unusual, it remained severe. The judge's formulation of the duty of care required Mr Popovic to tell Mr Panagoulias to immediately report any severe or unusual headache.[169]

Disposition

[160] Appellant's submissions [36]; appeal ts 38, 49 ‑ 50

[161] Appellant's submissions [38], referring to ts 203; appeal ts 41 - 42.

[162] Appellant's submissions [39], referring to ts 204 ‑ 205; appeal ts 42, 51 ‑ 52.

[163] Appellant's submissions [41], referring to ts 234; appeal ts 52.

[164] Appellant's submissions [42].

[165] Appellant's submissions [43].

[166] Appellant's submissions [43] ‑ [44].

[167] Appellant's submissions [45].

[168] Appellant's submissions [46], [57]; appeal ts 40, 45, 52 ‑ 53.

[169] Appellant's submissions [46] ‑ [48]; appeal ts 45, 47, 53

Ground 2 purports to challenge the judge's 'finding' that Mr Panagoulias did not suffer a severe headache at 2.00 am or 3.00 am on 6 October 2007. For the reasons developed below, we do not accept the premise underpinning this ground - that the judge made such a finding.
The question of the severity of Mr Panagoulias' headache at 2.00 am or 3.00 am did not arise in the abstract. Rather, it arose for determination in the specific context of East Metropolitan's submission that, in having a severe headache at that time, Mr Panagoulias' conduct in not then going to hospital supported the drawing of an inference that Mr Popovic did not give the appropriate advice. The logic of this submission requires attention to, and comparison of, two elements. The first concerns the content of the appropriate advice: in what postulated scenario(s) should Mr Panagoulias have been advised to go to hospital? The second concerns the situation at 2.00 am or 3.00 am on 6 October 2007 when Mr Panagoulias awoke: had such a scenario, prompting Mr Panagoulias to go to hospital, arisen?
In the manner explained at [84] above and detailed below, East Metropolitan advances the following answers:
1.Mr Panagoulias should have been advised to immediately report or attend hospital upon developing any unusual headache or, relevantly, severe headache.
2.Mr Panagoulias experienced a severe headache at 2.00 am or 3.00 am.
As is apparent, ground 2 challenges the judge's finding relevant to this second element. There is no challenge to the judge's findings as to the first element. However, the parties' submissions on appeal assert different findings by the judge concerning the content of the appropriate advice. We begin with that question, which concerns the proper construction of the judge's reasons.

The content of the appropriate advice - in what scenario(s) should Mr Panagoulias have been advised to go to hospital?

East Metropolitan submits that the judge's formulation of the duty of care required Mr Popovic to tell Mr Panagoulias to immediately report any severe headache, or any unusual headache. By contrast, the first respondent submits that the judge found that Mr Popovic was required to tell Mr Panagoulias to be vigilant for anything out of the ordinary, and that he should go to hospital if he had an unusually severe headache.
East Metropolitan fixes on the emphasised portion of the judge's language in the following reasons:
[230]While the nature of the required advice or warning was necessarily generalised, all parties accepted that on learning about the sneeze Mr Popovic, acting reasonably, was required to tell [Mr Panagoulias] to be vigilant for anything out of the ordinary in his condition, and to seek further assistance if there were any such changes.
[231]In my view, based on the evidence of the neurosurgical witnesses, Mr Popovic was obliged to canvass signs and symptoms of complications, for example, by asking [Mr Panagoulias] whether he had noticed any discharge of blood or colourless fluid. Reasonable case also required that he tell [Mr Panagoulias] to be vigilant for any change in his condition, and that he immediately report any noticeable change in the discharge from his nose such as clear fluid or blood, or elevated temperature, or neck stiffness or any severe or unusual headache. [Mr Panagoulias] should have been told to immediately report any such problems to Mr Popovic and if that proved not possible, then to seek emergency treatment. … (emphasis added)
Read in isolation, this italicised formulation provides support for East Metropolitan's contention. However, the judge's reasons must be read as a whole. In our view, when that is done, the judge did not find that reasonable care required the giving of advice to immediately report a severe headache that was not unusual.
As is clear from the above, the judge formulated what was said in [231] in the context of, and immediately following, his expression of what was common ground between the parties. This was that 'on learning about the sneeze, Mr Popovic, acting reasonably, was required to tell the patient to be vigilant for anything out of the ordinary in his condition, and to seek further assistance if there were any such changes' (emphasis added).[170]
[170] Primary reasons [230].
As explained at [83] above, in [259] of his reasons, the primary judge rejected East Metropolitan's submission to the effect that the appropriate advice should have been simply that if a 'severe headache' developed, Mr Panagoulias should go to hospital. The judge described that as an over simplification of the evidence of the relevant expert, Dr Sheridan. Rather, Dr Sheridan's evidence focused on the need for the patient to be alert to changes in his condition. In our view, it is clear from this aspect of the judge's reasons that his finding as to the content of the appropriate advice did not extend to advice to go to hospital if a severe headache that was not unusual developed.
That is reinforced by the judge's following observation, made in the context of Mrs Panagoulias' evidence concerning her husband's headache when he awoke at 2.00 am or 3.00 am:[171]
What is important in my view, however, is that even Mrs Panagoulias, familiar as she was with her husband's history of headaches, did not observe or at least recall that her husband was then experiencing anything out of the ordinary for him. Headaches were a regular feature of his life, including headaches of a severity that they were normally treated with Panadeine Forte. … (emphasis added)
[171] Primary reasons [249].
It was that which was important because, in the primary judge's view, it was things that were out of the ordinary which should have triggered Mr Panagoulias' attendance at the ED if the appropriate advice had been given.
This is further reinforced by the judge's finding at [258] that Mr Panagoulias' conduct, in asking his wife to call Mr Popovic between 8.00 am and 9.00 am, once he recognised that he was experiencing something out of the ordinary, was consistent with acting on proper advice.
For these reasons, when the primary reasons are read as a whole, in our opinion, the primary judge found that reasonable care required Mr Popovic to give advice that if Mr Panagoulias had a headache that was unusually severe, or otherwise unusual, he should contact him or go to hospital. Some of East Metropolitan's submissions appear to suggest that reasonable care required something more than advice to this effect.[172] However, as we have said, there is no challenge to the primary judge's formulation of what reasonable care required. The issue on appeal is limited to the proper construction of what his Honour found to be the appropriate advice, not whether his Honour erred in formulating the appropriate advice other than as required by the exercise of reasonable care.[173] While it is thus unnecessary to do so, we note that his Honour's finding as to what reasonable care required was supported by expert evidence which his Honour was entitled to accept.[174]

Whether a scenario prompting Mr Panagoulias to go to hospital had arisen at 2.00 am or 3.00 am?

[172] See [84(7)] above.

[173] Appeal ts 40.

[174] ts 787, 791 - 792.

We turn to the second element referred to at [86] above. East Metropolitan seeks to use Mr Panagoulias' conduct, or lack of it, as a foundation for drawing an inference as to the absence of the appropriate advice. In that framework, the question of severity was not relevantly to be determined in the abstract or objectively. Rather, what was relevant was how Mr Panagoulias, being the person who spoke to Mr Popovic and to whom any advice was directed, experienced or perceived the headache. He could only be expected to attend hospital if he perceived that the headache met the criteria upon which he was advised to go, namely, relevantly, that it was unusually severe. If he did not perceive the headache as meeting that criteria, his failure to go to hospital could not provide support for an inference that the advice was not given.
It is clear from the first sentence of [258] of the primary reasons that the judge recognised this. The judge found, in effect, that Mr Panagoulias first experienced a headache that was out of the ordinary when he woke between 8.00 am and 9.00 am. At that stage, Mr Panagoulias asked his wife to call Mr Popovic. The judge found that this was consistent with Mr Panagoulias having received the appropriate advice.
Consequently, the fact that Mr Panagoulias did not go to hospital at 2.00 am or 3.00 am provides no support for the inference that he did not receive the appropriate advice from Mr Popovic.
This reasoning explains why Mrs Panagoulias' evidence as to how she perceived the severity of the headache, on which East Metropolitan's submissions placed considerable emphasis, was not of central significance. Her evidence set out at [70] above supports, or is at least consistent with, the judge's conclusion as to how Mr Panagoulias perceived the severity of the headache.
For these reasons:
(1)The judge did not make the finding that is challenged by ground 2. The judge did not find that the headache at 2.00 am or 3.00 am was not severe.
(2)The judge's reasoning and conclusion at [258] reveals no error.
Consequently, ground 2 fails.

Ground 3: should it be inferred that the appropriate advice was not given?

East Metropolitan's submissions

Ground 3 challenges the inference, said to have been drawn by the primary judge at [263]. East Metropolitan contends that, in [263], the primary judge drew the inference that Mr Popovic advised Mr Panagoulias in the telephone conversation that, if he was to suffer from a severe headache, he should immediately attend hospital. As we will explain, we do not accept that the judge positively drew this inference.
East Metropolitan essentially reasserts the case it advanced below, based on the three circumstances set out at [47] above. In large part, its argument assumes the success of grounds 1 and 2. Its principal submissions are as follows:
1.If ground 1 is successful and Mrs Panagoulias' evidence about the telephone conversation is admissible, that evidence is inconsistent with the inference drawn by the judge.[175] East Metropolitan submits that, given Mr Panagoulias' history of headaches and Mrs Panagoulias' intense interest and involvement in Mr Panagoulias' treatment, if the appropriate advice had been provided, Mr Panagoulias would have relayed it to Mrs Panagoulias sometime after the telephone conversation or on the morning of 6 October.[176] It also submits that [263] can only be understood as encompassing a finding that Mrs Panagoulias was told by her husband that Mr Popovic had given him the appropriate advice. It submits that the resultant unexpressed reasoning, that Mrs Panagoulias must have then forgotten before the trial, is untenable given her clear evidence of the concern she showed for her husband's care.[177]
2.In not contacting Mr Popovic or attending RPH, Mr Panagoulias' response to experiencing his headache at 2.00 am or 3.00 am on 6 October, was inconsistent with the inference drawn by the judge that Mr Popovic gave him the appropriate advice.[178] East Metropolitan emphasises the seriousness of the complications attending the second surgery and the primary judge's findings that Mr Panagoulias was at risk of bacterial meningitis.[179] If ground 2 is successful, Mr Panagoulias' response to his severe headache, in waiting and seeing, is completely inconsistent with the appropriate advice the primary judge found that Mr Popovic was required to, and did, give.[180]
3.The judge's inference is inconsistent with his Honour's finding that, in the conversation between Mrs Panagoulias and Mr Popovic at 9.07 am on 6 October, Mr Popovic did not ask why his advice had not been followed.[181] East Metropolitan submits that, common experience and common sense suggest that such an enquiry would have been made and, therefore, the absence of such an enquiry suggests the appropriate advice was not given.[182]

Disposition

[175] Appellant's submissions [61].

[176] Appellant's submissions [62], [66]; appeal ts 54.

[177] Appellant's submissions [64] - [65].

[178] Appellant's submissions [57].

[179] Appellant's submissions [57].

[180] Appellant's submissions [59] - [60]; appeal ts 53.

[181] Appellant's submissions [67]; appeal ts 55.

[182] Appellant's submissions [68] - [69]; appeal ts 55.

Ground 3 and East Metropolitan's submissions in support of it assert that in [263] the judge drew an inference that Mr Popovic gave particular advice to Mr Panagoulias in the telephone conversation. Senior counsel for East Metropolitan accepted, rightly in our opinion, that the judge did not draw an inference to the effect it alleged.[183] Rather, the judge was not satisfied that he should draw the inference, invited by East Metropolitan, that the appropriate advice was not given.[184] The judge expressed his conclusion in [263] as follows:
None of these circumstances, individually or collectively, leads me to a conclusion that proper advice of the kind that has been described, however exactly expressed, was not given to [Mr Panagoulias] the previous afternoon. It follows that I am not satisfied that Mr Popovic breached the duty he owed to [Mr Panagoulias]. (original emphasis)
His Honour's approach correctly reflected the onus of proof, borne by East Metropolitan (and Mr Panagoulias), to establish the claim of negligence.
[183] Appeal ts 54.
[184] Primary reasons [263].
East Metropolitan must show error on the part of the primary judge in failing to draw the inference it invites. The approach to be taken was explained by Beaumont and Lee JJ in the following passage from Minister for Immigration, Local Government and Ethnic Affairs v Hamsher,[185] which has been adopted by this and other intermediate appellate courts:[186]
[T]he court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (at 552 - 553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected.
[185] Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359, 369.
[186] See Proudlove v Burridge [2017] WASCA 6; (2017) 79 MVR 257 [127], and cases there cited.
As we have said, East Metropolitan relies on three circumstances to sustain the inference it invites. The second is Mr Panagoulias' failure to contact Mr Popovic or attend hospital after experiencing a headache at 2.00 am or 3.00 am. For the reasons given concerning ground 2, that fact provides no support for the inference that Mr Panagoulias did not receive the appropriate advice from Mr Popovic.
For related reasons, East Metropolitan's third circumstance provides very little or no support for the inference it invites. On the judge's findings which we have upheld, by approximately 9.07 am on 6 October, but not earlier, Mr Panagoulias was experiencing a headache of a severity that was out of the ordinary. As the judge found, Mr Panagoulias' conduct in asking his wife to contact Mr Popovic at this time was consistent with his having received the appropriate advice. In circumstances where Mr Panagoulias had acted consistently with the advice Mr Popovic had given, there is no basis to draw any inference from the fact that Mr Popovic did not ask Mrs Panagoulias why her husband had not gone to hospital earlier.
Further, even if this were not so, in our view East Metropolitan's third point carries very little weight. We do not accept its assertion that common sense and experience suggest that Mr Popovic would have asked why his advice was not followed. To our minds, common experience would rather suggest that this is something that, in the circumstances, may or may not have been raised. We think it far from unlikely that a person in Mr Popovic's position might focus attention and discussion on what then needed to be done, rather than on whether something should or could have been done at an earlier stage.
That brings us to East Metropolitan's first point, Mr Panagoulias' failure to mention Mr Popovic's advice to his wife. We proceed on the assumption that the hearsay rule does not render Mrs Panagoulias' evidence of this inadmissible.
We are not persuaded that this circumstance sustains the inference invited by East Metropolitan. That is so for the following reasons, which substantially reflect the reasons given by the primary judge.
First, Mrs Panagoulias was giving evidence of a conversation that had occurred more than nine years earlier. The passage of such a substantial period detracts from the security with which an inference might be founded on her evidence as to the content of her conversation with her husband.
Secondly, the extent of Mrs Panagoulias' evidence as to the telephone conversation was as follows. During the telephone conversation, she recalled hearing her husband explain about his sneeze, and the piece of 'fatty tissue' that came out of his nose, and remembered her husband asking what he should do.[187] After the telephone conversation, she remembered her husband's explanation that he had been told to take the thing that had been expelled from his nose and put it in a jar of water in the refrigerator to bring to the next appointment where it could be examined.[188] The call lasted for more than 2 1/2 minutes.[189] As the primary judge observed, that duration tends to suggest that there was more discussed between Mr Popovic and Mr Panagoulias than what, on Mrs Panagoulias' evidence, Mr Panagoulias recounted to her. That may have been because Mr Panagoulias did not recount all of what had been discussed, or because Mrs Panagoulias did not recall all of what Mr Panagoulias had said to her. There are plausible reasons why Mrs Panagoulias might not have recalled everything her husband told her about the telephone conversation.[190]
[187] Primary reasons [38], [234].
[188] Primary reasons [39], [234].
[189] Primary reasons [38], [234].
[190] Primary reasons [235].
Thirdly, even if it is found that Mr Panagoulias did not tell his wife that Mr Popovic had given him the appropriate advice, we would not infer from this fact that such advice was not given. It can safely be inferred that the expulsion of a lump of fatty tissue from Mr Panagoulias' nose, when he sneezed, was an extraordinary and concerning event. It was the immediate catalyst for the telephone call. In this context, it might reasonably be supposed that Mr Panagoulias, as recipient of the advice Mr Popovic gave, considered the advice to retain the specimen in a jar in the fridge to be the key aspect of that advice. Such advice related to the fatty tissue and called for immediate action. Mr Panagoulias' failure to tell his wife of advice as to what to do if he experienced a change in condition, including a headache of unusual severity, may have occurred for a variety of reasons. Without attempting to be exhaustive, he may not have perceived it as sufficiently significant or unusual to warrant mentioning to his wife. Given the immediate need to act on the advice of Mr Popovic and attend to the lump of fatty tissue, he may have consciously chosen not to relay the additional appropriate advice, being content to simply advise his wife of the need to call Mr Popovic or attend hospital if, and when, he experienced a relevant change in his condition. He may have been distracted by the need to do as Mr Popovic had advised, and place the fatty tissue in a jar in the fridge. He may have been distracted by domestic matters.
In the circumstances, in our view, a finding that Mr Panagoulias did not tell his wife that he had received the appropriate advice from Mr Popovic does not sustain an inference that Mr Popovic failed to give such advice in his telephone conversation with Mr Panagoulias.
In our opinion, the three circumstances relied on by East Metropolitan do not, individually or in combination, sustain an inference that Mr Popovic failed to give the appropriate advice. Consequently, ground 3 fails.
Thus, East Metropolitan's attack on the judge's finding on breach fails. As a result, its appeal must be dismissed. In our view, the appeal also fails on the question of causation. We turn to ground 4, which concerns that question.

Ground 4: causation

Ground 4 challenges the primary judge's conclusion that, even if Mr Popovic did not give the appropriate advice during the telephone conversation, his failure to do so did not cause the harm suffered by Mr Panagoulias.
East Metropolitan's submissions in support of ground 4 substantially mirror the submissions it made to the primary judge. As will be seen, our reasons for rejecting ground 4 substantially mirror the primary judge's reasons on the causation question.

The primary judge's reasons on causation

The primary judge outlined East Metropolitan's (and Mr Panagoulias') causation arguments, as follows. It took 7 1/2 hours for RPH staff to administer intravenous antibiotics to Mr Panagoulias. It should be supposed that, had Mr Panagoulias arrived earlier, treatment would have occurred 7 1/2 hours after arrival. If Mr Panagoulias had received and acted on an appropriate warning, he would have arrived at the ED at 2.30 am or 3.30 am and, thus, he would have been treated by 10.30 am.[191] Alternatively, even if he had waited a few hours after he took the Panadeine Forte at 2.00 am or 3.00 am, he would have arrived earlier, probably by about 7.00 am. In that circumstance, he would have been assessed in the ED by different doctors, blood samples would have been taken and a CT head scan or lumbar puncture would have been undertaken within 3 hours.[192]
[191] Primary reasons [373].
[192] Primary reasons [374].
The primary judge rejected these arguments as speculative, having regard to a number of matters.
First, the primary judge considered that what was critical was the time at which Mr Panagoulias recognised that his headache was particularly severe, was increasing or was not responding to the analgesic.[193] After waking up at 2.00 am or 3.00 am with a headache, Mr Panagoulias may well have waited some time to see whether the Panadeine Forte he took was effective. The judge observed that there was every reason to think this is what he did.[194] It had not been demonstrated that Mr Panagoulias recognised that the Panadeine Forte was ineffective at any time before 8.30 am.[195]
[193] Primary reasons [375].
[194] Primary reasons [375].
[195] Primary reasons [375].
Secondly, while there was general evidence led that the number of night staff was normally greater than day staff and that Friday and Saturday night shifts were particularly busy,[196] there was a complete absence of evidence about the circumstances of the ED on the evening shift, including the case load, that would allow his Honour to draw any conclusions about the relative availability of medical staff and resources.[197] His Honour noted that Mr Panagoulias' hypothetical scenario had him arriving at the ED towards the end of the evening shift when there may have been problems of a looming shift change (at 8:30 am),[198] and individual staff members not taking ultimate responsibility for ensuring that treatment was provided in a timely way.[199]
[196] Primary reasons [49].
[197] Primary reasons [376].
[198] Primary reasons [47].
[199] Primary reasons [377].
Thirdly, the failure was more than the sum of the lack of care of each individual RPH staff member; it was a collective or institutional want of care.[200] Without some explanation for how and why it occurred, and how it was allowed to occur, his Honour could not accept or assume that Mr Panagoulias would probably have received a better standard of care from the night shift than he did from the day shift.[201]
[200] Primary reasons [378].
[201] Primary reasons [378].
Fourthly, the most obvious flaw in Mr Panagoulias' line of reasoning was that, had he presented at the ED at the earlier time, nothing may have been done and he may not have received the appropriate treatment.[202] There was no evidence about the symptoms he had at that time, or how he would have described them, and it could not reasonably have been assumed that he would have demonstrated any symptoms other than a headache.[203] Had he presented with nothing more than a headache, he may have been sent home.[204]
[202] Primary reasons [379].
[203] Primary reasons [379].
[204] Primary reasons [379].
Finally and in any event, Mr Panagoulias presented to RPH with hours to spare for the effective treatment of his bacterial meningitis.[205]

East Metropolitan's submissions

[205] Primary reasons [380].

East Metropolitan makes the following submissions in support of ground 4:
1.It submits that if Mr Popovic had given the appropriate advice to Mr Panagoulias:
(a)Mr Panagoulias would have attended the ED of RPH at 2.30 am or 3.30 am on 6 October 2007, given evidence that it would have taken around 30 minutes to get there.[206]
[206] Appellant's submissions [75], referring to ts 205; appeal ts 58.
(b)On Dr Wilson's evidence, at 2.30 am or 3.30 am, a CT scanner would have been available to take a CT scan of Mr Panagoulias' head within 10 minutes to 1 1/2 hours later and a lumbar puncture could have been performed within half an hour after the CT scan.[207]
(c)All other treatment was likely to have taken the same amount of time. Therefore, Mr Panagoulias would have received antibiotics at 10.00 am or 11.00 am, being 7 1/2 hours after presentation at the ED.[208]
(d)Had Mr Panagoulias received antibiotics at either of those times, he would not have suffered serious harm.[209]
2.Relying on its submissions on ground 2, East Metropolitan further submits that the primary judge's reasoning that Mr and Mrs Panagoulias may have acted contrary to Mr Popovic's advice and waited 6 hours to see how it progressed was contrary to common sense and to uncontradicted evidence as to the care Mr Panagoulias took with his health and the attention Mrs Panagoulias paid it.[210]
3.East Metropolitan accepts that there was no direct evidence led about what occurred at RPH during the 5 October evening shift.[211] It submits that no inference was to be drawn adversely to it because of the agreed fact that it could not identify who was on duty that night.[212] It further submits that Dr Wilson's evidence as to how the night shift usually operated was uncontradicted and had to be accepted, leaving open only the finding that Mr Panagoulias would have received antibiotics at 11.00 am on 6 October, at the latest.[213]
4.East Metropolitan submits that it did not, and does not, contend that Mr Panagoulias would have received better care from the night shift than the day shift; the chain of causation it advances proceeds on the basis that Mr Panagoulias would have received the 'same' treatment, that is, antibiotics approximately 7 1/2 hours after presentation.[214]
5.It is to be assumed that, upon arrival at the ED, Mr Panagoulias would have relayed his medical history consistently with that which he gave to Dr Wardman and Dr Wilson.[215] The primary judge's reasoning overlooks what the RPH staff would have known, namely that Mr Panagoulias: (1) had a complex recent medical history following his surgery; (2) was at risk of contracting bacterial meningitis and other complications (having been advised of that by Mr Popovic); and (3) had a headache severe enough for him to warrant taking Panadeine Forte.[216]

The majority in Walton observed that the distinction which they drew was 'one which can be fine'.[251] That observation is reinforced by what has been said in subsequent cases.[252] As has been pointed out in Cross,[253] the application of Walton has, at times, led to division of opinion at appellate level; see, for example, Official Trustee in Bankruptcy v Alvaro[254] and T (a child) v The Queen.
[251] Walton (303).
[252] See, for example, Pollitt v The Queen (572, 579); R v Su [1997] 1 VR 1, 41; Karam v The Queen [2015] VSCA 50 [58].
[253] Cross on Evidence [31-065] fn 102.
[254] Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372.
The plurality did not limit the application of the hearsay rule to conduct that is intended by B to be assertive. Rather, whether the hearsay rule excludes evidence of conduct depends upon the proposed use of the evidence. Consequently, we reject East Metropolitan's submission outlined at [143(2)].
East Metropolitan submits that this court should apply the approach stated by Mason CJ in Walton. It further submits that that approach is consistent with the approach taken by the plurality. For the reasons that follow, we do not accept these submissions.
In our opinion, the approach of the plurality and that of Mason CJ are materially different. As we have explained, the plurality propounded a rule that if evidence of conduct has no probative value other than as an assertion, it is inadmissible by reason of the hearsay rule (or an extension of it). Conduct, even if containing an assertion, that is tendered as a relevant fact or a fact relevant to a fact in issue, including as conduct from which an inference can be drawn, will be admitted to prove that fact, notwithstanding any hearsay element in the implied assertion.
By contrast, Mason CJ stated that it is for a trial judge to decide whether a particular implied assertion is of a kind to which the rationale underlying the hearsay rule would be relevant.[255] On his Honour's approach, in the case of an implied assertion, it is necessary for the judge to balance the competing considerations in order to determine admissibility. The trial judge will have regard to various considerations, including the reliability and probative value of the impugned evidence and any danger of concoction.[256]
[255] Walton (293).
[256] Walton (293 ‑ 294).
The difference in these approaches has been recognised.[257] In our opinion, this court should apply the approach of the plurality, which commanded majority support, in preference to the approach of Mason CJ. We note that the approach of the plurality has been applied in a number of intermediate appellate decisions, many of which are referred to elsewhere in these reasons. Senior counsel for East Metropolitan did not identify any appellate decision in which Mason CJ's approach concerning implied assertions has been applied in preference to the plurality approach.
[257] See, for example, Pollitt v The Queen (581 ‑ 582); Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1, 7; Cross on Evidence [31-045],[31065].
For related reasons, we do not accept East Metropolitan's submission at [143(4)] above, that the court should 'develop' the common law as there contended. It is not this court's role to develop new exceptions to the hearsay rule. The question for this court is whether, upon an application of established principles, the evidence in question was rendered inadmissible by the hearsay rule. See also [150] above.
In R v Benz,[258] Gaudron and McHugh JJ applied Walton in concluding that the hearsay rule precludes testimonial use of evidence of an implied assertion, unless an exception to the rule applies. Thus, the hearsay rule applied to evidence that a person said, 'It's all right, my mother's just feeling sick', containing the implied assertion that the other woman was her mother and which was tendered to prove that fact.
[258] R v Benz (143).
In Bull v The Queen,[259] McHugh, Gummow and Hayne JJ said that Walton v The Queen narrowed the scope of the hearsay rule by rejecting an appeal against the admissibility of statements made by the deceased to other persons to the effect that she intended to meet the accused at a particular time and place. While the jury could not use the content of the deceased's statement to find that they had met, it could use the statements indirectly to prove the same fact by receiving the evidence as tending to prove that the deceased intended to meet with the accused. Their Honours observed that this 'seems to come perilously close to permitting the assertions in the statements to be used to prove a fact, contrary to the hearsay rule'.[260] Their Honours also observed that, in Walton, '[c]ommon sense pragmatism prevailed'.[261]
[259] Bull v The Queen [125].
[260] Bull v The Queen [125].
[261] Bull v The Queen [125].
In Bull v The Queen, the court found that evidence of a conversation between the accused, Bull, and the complainant did not infringe the hearsay rule. Bull was charged with an offence of depriving a woman of her liberty and 12 offences of a sexual nature against her. He was convicted of four of the counts concerning sexual offences and acquitted of the others. The majority identified the evidence in question as follows:[262]
[262] Bull v The Queen [38] ‑ [39].
The appellants alleged that the complainant consented to the sexual activity and that she was never handcuffed. In support of their defence, they sought to cross-examine the complainant on, and tender evidence of, Bull's version of the telephone conversation that caused the complainant to come to the house. The appellants argue that this conversation tended to prove that the complainant came to the house for the express purpose of having sexual intercourse and giving effect to her sexual fantasies. The trial judge rejected the evidence pursuant to s 36BA of the [Evidence Act 1906 (WA)]. The evidence sought to be adduced was as follows:
Mr Bull: Why don't you come over?
Complainant: Oh no, I've got to work tomorrow.
Mr Bull: Well you can sleep the night here and then you can go to work from here.
Complainant: Oh you should have rung earlier.
Mr Bull: Well I did but you were out.
Complainant: I was trying to score some drugs, marijuana.
Mr Bull: Oh we've got marijuana here if you want to come over and have a smoke I'll teach you to drink vodka Russian style.
Complainant: Oh what have you been doing?
Mr Bull: We've been to the strippers and that and playing some cards and that. Oh if you come over here we might be able to do one of your fantasies if you want.
Complainant: Oh what see two guys sleep with each other.
Mr Bull: No the other one.
Complainant: Well if I come over will you be awake?
Mr Bull: We are.
Mr Bull: Have you any cobwebs?
Complainant: Oh lots.
Mr Bull: Well maybe we can blow them away for you.
If the conversation had been admitted, the appellants would have adduced evidence that, in referring to 'cobwebs', Bull meant, and the complainant understood him to mean, lack of sexual intercourse for some time. To explain the conversation, the appellants would also have relied on evidence that the complainant had three fantasies: (1) watching two men have sex, (2) having sex with a male virgin, and (3) having sex with two or more men.
Their Honours explained that the relevance of this evidence did not depend upon the truth of what was asserted in the conversation. Regardless of the truth value of Bull's statements, it was the fact that they were made by Bull and that the complainant responded in the way she did that had relevance to the complainant's reason for going to the house in response to the telephone call. Her state of mind - her reason for going to the house - was relevant to whether she consented to the sexual activities that took place after she arrived.[263] Because the purpose or reason for the complainant going to Bull's house was relevant to a fact in issue (consent and, in the case of Bull, honest belief in consent), the conversation was admissible as original evidence to prove that purpose or reason. The hearsay rule did not prevent its admission.[264] Thus, the evidence tended to prove a fact relevant to the fact in issue, but it did not prove it by asserting the truth of the contents of the conversation.[265]
[263] Bull v The Queen [118].
[264] Bull v The Queen [121].
[265] Bull v The Queen [126].
In R v Perry,[266] the court applied the distinction between using evidence of a conversation testimonially, to prove the truth of its contents, and using it as a circumstance to support the drawing of an inference as to a fact in issue.
[266] R v Perry [2011] QCA 236 [30] ‑ [38].
For another, more recent, example of an appellate court applying the distinction drawn by the plurality in Walton, see R v MCJ.[267]
[267] R v MCJ [2017] QCA 11 [80] - [88].
Some earlier decisions also provide assistance in applying the hearsay rule in the context of drawing inferences.
In Martin v Osborne,[268] Dixon J discussed the drawing of inferences from what persons had said or done, suggesting that the hearsay rule has a limiting effect on the drawing of inferences. In that context, his Honour said as follows:[269]
But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed. The application of this, as of any other general statement about relevancy is subject to the well-known specific rules of exclusion. For instance, the rule against hearsay and the warning implied in the descriptive phrase res inter alios acta lead to the exclusion of evidence not only of what a stranger to the cause has said but also of what he has done, if it is offered to prove his knowledge of some fact and thus the existence of that fact, notwithstanding that the fact itself be relevant and its proof by another medium be receivable. (emphasis added)
In other words, it is not permissible to use knowledge of a fact to prove the truth of what is known.[270]
[268] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375 ‑ 376.
[269] Martin v Osborne (375 - 376).
[270] Pollitt v The Queen (577).
In Jones v Sutherland Shire Council,[271] Mahoney JA discussed the application of the rule against hearsay to implied assertions and in the context of the drawing of inferences. His Honour reasoned as follows:
1.The hearsay rule only excludes the drawing of inferences from conduct where the process of drawing an inference falls within the reason of the hearsay rule.[272]
2.It is necessary to examine the reasoning according to which the inference is drawn to see whether it involves the equivalent of an expressed statement and whether the fact to be inferred is to be inferred as true because of that statement.[273]
3.The existence of a mental element in the process of reasoning does not of itself require that the inference be excluded. It is necessary to examine the nature of it and what part it plays in the reasoning to the fact to be inferred.[274]
4.The reasoning toward the inference should be examined to see whether, for example, it involves inferring a fact from the fact that a person thought or said that the fact was true.[275]
5.What is not permitted is reasoning from the person's knowledge of some fact to the existence of that fact.[276]
[271] Jones v Sutherland Shire Council [1979] 2 NSWLR 206, 229 ‑ 233.
[272] Jones v Sutherland (230).
[273] Jones v Sutherland (230).
[274] Jones v Sutherland (230).
[275] Jones v Sutherland (232).
[276] Jones v Sutherland (233), referring to Martin v Osborne (375).
In Ritz Hotel Ltd v Charles of the Ritz Ltd,[277] McLelland J considered the operation of the rule against hearsay in the context of the drawing of inferences. His Honour said that the hearsay rule, or an extension of it, precludes evidence, from which it may be inferred that some person was of the opinion or belief that a fact was true, being used in proof of that fact, referring to Martin v Osborne.[278] His Honour also referred to Jones v Sutherland, and then summarised the position as follows:[279]
The view which appears to emerge from what was said by Mahoney JA in Jones is that an inference of fact from a person's conduct (which I take to include his document or utterance) is precluded by the hearsay rule (fortified by what Mahoney JA appears to treat as separate rules excluding opinions or conclusions) where a necessary part of the process of reasoning from conduct to fact is that the person in question knew, or believed, or held the opinion, or had formed the conclusion, that the fact was true (unless of course the knowledge or belief of that person is itself a fact in issue). Although this is a useful guide, it seems to me that in the final analysis the answer to the question whether any such mental element is a necessary part of the process of reasoning may often be found to be a matter of degree rather than to depend upon the application of a clear qualitative distinction. The court must in my opinion endeavour to determine whether, considered in relation to the inference in question, the relevant document, utterance or other conduct has the character of an objective event or transaction on the one hand, or of a subjective assertion (involving knowledge, belief, opinion or conclusion) on the other. Only if the second characterisation is more appropriate in relation to the inference in question, will the inference be excluded by operation of the hearsay rule.
[277] Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158.
[278] Ritz Hotel Ltd v Charles of the Ritz (171).
[279] Ritz Hotel Ltd v Charles of the Ritz (172).
Thus, on McLelland J's view, in the end, the question of whether the hearsay rule precludes the drawing of an inference involves a question of characterisation. Does the conduct in question have the character of an objective event or transaction (in which case it is admissible) or of a subjective assertion, involving knowledge or belief on the part of the party acting?
The distinction drawn by his Honour is elucidated by its application to documents the subject of hearsay objection in that case. A judgment of a Paris court included a passage as follows: 'Considering that it is established that the Ritz Hotel Ltd is the owner of the trademark, Ritz, registered in France on the 23rd day of April 1908 …'. McLelland J rejected the receipt of that document as evidence that the trademark had been so registered. It was a necessary part of the reasoning, from the judgment to the fact to be inferred, that the French court had formed the opinion that those facts were true. In relation to those inferences, the judgment had the character of a subjective assertion.[280]
[280] Ritz Hotel Ltd v Charles of the Ritz (172 ‑ 173).
By contrast, another exhibit was an agreement between Ritz Hotels Development Co Ltd (RHD) and Cesar Ritz and Marie Ritz, by which Cesar and Marie Ritz purported to give to RHD certain rights of use of the name 'Ritz' in consideration of RHD agreeing to transfer to Cesar Ritz 'sixty Founder's Shares of the Ritz Hotel Madrid and ten per cent of any benefit accruing to [RHD] from the promotion or creation of any other hotel or restaurant business in Spain …'. The judge accepted the document as evidence that, on the date of its execution, there was in existence or in contemplation a 'Ritz Hotel' in Madrid. In relation to that inference, the document had the character of an objective transaction, rather than a subjective assertion by the parties. The inference did not arise from any assertion that there was a Ritz Hotel Madrid in existence, but rather from the circumstance that in the ordinary course of human affairs, people do not contract to transfer shares in an enterprise that is neither in existence nor in contemplation.[281]
[281] Ritz Hotel Ltd v Charles of the Ritz (173).
The first respondent's submissions on appeal make extensive reference to the decision of the Victorian Court of Appeal in Karam v The Queen. However, that case concerned the uniform Evidence Act provision concerning hearsay. It was for that reason that the court observed '[n]one of this matters greatly now', in relation to uncertainty as to the 'vexed issue' at common law concerning the application of the hearsay rule to non‑assertive conduct.[282]

Implied assertions and the hearsay rule: summary of principles

[282] Karam [61] ‑ [62].

The following principles emerge from this survey of the authorities.
Evidence of a witness as to B's conduct may or may not infringe the hearsay rule, depending upon the purpose for which the evidence is led. If the evidence's only probative value is as an assertion - in other words, if its sole purpose is to prove the truth of the implied assertion contained in the conduct - it is inadmissible by reason of the hearsay rule.[283] On the other hand, if evidence of the conduct is led as a relevant fact, or as a fact relevant to a fact in issue, it is admissible to prove that fact, notwithstanding that it may also contain an implied assertion.[284] The second category includes a case where the conduct is led as a fact from which an inference as to a relevant fact may be drawn.[285]
[283] Walton (304, 306); R v Benz (143).
[284] Walton (304); Bull v The Queen [121], [126].
[285] Walton (302); R v Perry [30] - [38]; R v MCJ [80] - [88].
Where evidence of B's conduct is led to support the drawing of an inference, the hearsay rule limits the kind of inferential reasoning that is permissible.[286] Evidence of B's statement or conduct cannot be used to infer a relevant fact where to do so involves reasoning from B's knowledge of that fact to the existence of that fact.[287] The application of these rules involves matters of degree and a question of characterisation: considered in relation to the inference in question, does the conduct have the character of a subjective assertion, involving knowledge or belief, or of an objective event?[288]

The purpose of the evidence in this case

[286] Martin v Osborne (375 - 376).

[287] Martin v Osborne (375); Jones v Sutherland (232 - 233); Pollitt v The Queen (577).

[288] Ritz Hotel Ltd v Charles of the Ritz (171).

As these principles make clear, the identification of the purpose for which evidence is tendered is critical to the evaluation of whether the evidence infringes the hearsay rule (or an extension of it).
The following use of Mrs Panagoulias' evidence of what her husband told her as to the telephone conversation would plainly infringe the hearsay rule:
1.Mrs Panagoulias' evidence is that, following the telephone conversation, her husband told her that Mr Popovic had told him the things to which Mrs Panagoulias refers in her evidence.
2.By implication, Mr Panagoulias was telling his wife that Mr Popovic had told him only those things, and nothing else.
Use of Mrs Panagoulias' evidence in that way would infringe the hearsay rule because the value of what Mr Panagoulias said would lie solely in the truth of the implied assertion that nothing else had been said to him by Mr Popovic. That is the characterisation of East Metropolitan's proposed use of the evidence invited by the first respondent at trial and on appeal.[289] If this characterisation is correct, the judge's rejection of the evidence was, with respect, plainly correct. The crucial issue is the question of characterisation.
[289] Respondent's submissions [30].
What is set out above is not the manner, or the only manner, in which East Metropolitan seeks to rely upon Mrs Panagoulias' evidence concerning the telephone conversation. One way in which East Metropolitan relies upon this evidence, consistently with the use proposed at trial on behalf of Mr Panagoulias,[290] is as follows:
1.The history of Mr and Mrs Panagoulias' relationship is such that it could be expected that Mr Panagoulias would pass on to her any advice from his surgeon of a significant nature, including any advice calling for action on the part of Mr Panagoulias.[291]
2.Mrs Panagoulias' evidence is that the only things recounted by Mr Panagoulias about the telephone conversation were those to which she refers.
3.In the circumstances, Mr Panagoulias' conduct, in not telling his wife that he received the appropriate advice, supports the drawing of an inference that he was not so advised.[292]
4.Moreover, Mr Panagoulias' failure to tell Mrs Panagoulias of such advice does not stand alone. Rather, it is one of several circumstances which are, together, relied upon by East Metropolitan as supporting the inference that no such advice was given.[293]
[290] ts 448 - 449.
[291] Appellant's submissions [62].
[292] Appellant's submissions [15], [29].
[293] Appellant's submissions [30].

East Metropolitan's submissions assert that it relies on Mr Panagoulias' conduct in the form of his silence.[294] We do not accept that characterisation of East Metropolitan's proposed use of Mrs Panagoulias' evidence. East Metropolitan points to Mr Panagoulias' conduct in not mentioning to his wife that he had been told something, in the telephone conversation with Mr Popovic, while recounting to his wife things that he had been told in that conversation. That cannot be equated with mere silence. In any case, as explained in [189] below, even if it is so characterised, on our analysis the result is the same.

Disposition

[294] Appellant's submissions [27] - [29], [31], [33], [35]; appeal ts 16, 20, 30, 35 - 36, 67 - 68.

The principles outlined above establish that the question of whether the hearsay rule precludes evidence of conduct (of a person not called as a witness) that is led to support the drawing of an inference, depends upon precise identification of the process of reasoning toward the inference invited, the application of fine distinctions, and a process of characterisation. Consequently, the result will often, as it is here, be finely balanced and one on which minds may reasonably differ.
There is room for the view that East Metropolitan seeks to use Mrs Panagoulias' evidence in a manner that does not infringe the hearsay rule. It might be said that Mr Panagoulias' failure to mention the appropriate advice is simply a circumstance from which East Metropolitan invites an inference that Mr Popovic did not give the appropriate advice. It may reasonably be argued that this does not involve inferring the fact that the appropriate advice was not given from the fact that Mr Panagoulias thought or said that the fact was true.
However, in the end, we would not adopt that approach. As outlined above, where conduct involves, or may involve, an implied assertion, the hearsay rule is not automatically rendered inapplicable simply because the proposed use of the evidence of the conduct is to support the drawing of an inference. Rather, in order to evaluate whether the evidence is sought to be used for a hearsay purpose, it is necessary to examine the reasoning by which the inference is invited.
To our minds, the difficulty for East Metropolitan is that the fact sought to be inferred, being the fact of the advice Mr Panagoulias had been given, or not given, by Mr Popovic, was, by definition, a matter within Mr Panagoulias' knowledge. When he spoke to his wife he had just had the telephone conversation with Mr Popovic, and so he knew what advice he had been given. Were it otherwise, there would be no basis for any inference to be drawn. The failure of a person to mention something of which they have no knowledge provides no support for an inference that the thing did not exist. Thus, Mr Panagoulias' knowledge of what he had just been told by Mr Popovic is a critical foundation for the inference from his failure to mention the relevant advice to his wife to the conclusion that the appropriate advice was not given. In that manner, in our view the inference invited by East Metropolitan involves reasoning from Mr Panagoulias' knowledge of a fact (as to what he was and was not told by Mr Popovic) to the existence of that fact, and thus infringes the hearsay rule.[295] Adopting McLelland J's analysis in Ritz Hotel v Charles of the Ritz Ltd, in our view, the conduct or utterance in question - what Mr Panagoulias did and did not say to his wife - is more appropriately characterised as a subjective assertion involving his knowledge than as an objective event. If the relevant conduct is simply silence - what Mr Panagoulias did not say - the reasons just given apply with the same force and the result is the same.
[295] Martin v Osborne (375 - 376); Jones v Sutherland (232 - 233).
For these reasons, we agree with the judge's conclusion, and reasoning, that the evidence in question infringed the hearsay rule.

Ground 5

As all grounds of appeal fail, ground 5 does not arise.

Notice of contention

As grounds 3 and 4 fail, the notice of contention, which assumes breach and causation are otherwise established, does not arise. Nevertheless, we will explain why, for two reasons, we would dismiss it. First, it seeks to raise a point not run at trial. Secondly, it fails on its merits.
The first respondent contends that the primary decision should be affirmed on the ground that any breach by Mr Popovic did not cause Mr Panagoulias' loss or damage because there was an intervening event breaking the chain of causation between Mr Popovic's breach and the harm. The first respondent contends that the intervening event was Mr Popovic's conduct in telephoning Dr Kern at about 9.30 am and advising him of the correct diagnosis and recommended treatment.[296] Had the recommended treatment been provided to Mr Panagoulias at any time before 3.00 pm, he would have avoided a long‑term outcome.[297]
[296] First respondent's amended notice of contention [2]; appeal ts 102.
[297] First respondent's amended notice of contention [2(d)].
Except in the most exceptional circumstances, it is contrary to principle to allow a party, after a case has been decided against them, to raise a new argument which, whether deliberately or through inadvertence, they failed to put during the trial when they had an opportunity to do so.[298] In particular, a point cannot be raised for the first time on appeal if it could possibly have been met by calling evidence below.[299] In deciding whether or not a point was taken at trial, no narrow or technical view should be taken. It is necessary to look at the actual conduct of the trial to see whether a point was, or was not, taken at trial.[300]
[298] University of Wollongong v Metwally [No 2] [1985] HCA 28; (1985) 59 ALJR 481, 483.
[299] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.
[300] Moustakas (497).
At trial, the first respondent did not plead that Mr Popovic's telephone conversation at about 9.30 am was a supervening cause which broke the chain of causation between any breach by Mr Popovic and Mr Panagoulias' harm. Ordinarily at least, a supervening event said to break the chain of causation is a matter which should be pleaded by a defendant in order to avoid surprise.
Nothing was said in opening, at trial, to suggest that a contention of supervening event was advanced by the first respondent.
On appeal, the first respondent submits that the claim that the 9.30 am telephone conversation broke the chain of causation was put in the course of the first respondent's closing submissions at trial.
At trial, it does not appear to have been the first respondent's case that Mr Popovic spoke with Dr Kern at 9.30 am. Rather, the case at trial appeared to have been that the conversation occurred at about 12 noon.[301] In any event, nothing in the first respondent's closing submissions at trial clearly suggested a claim that Mr Popovic's telephone conversation with Dr Kern broke the chain of causation between any breach on the part of Mr Popovic and the harm suffered by Mr Panagoulias. The assertion that treatment between noon and 12.30 pm would have avoided Mr Panagoulias' harm,[302] falls well short of amounting to a claim of an intervening cause. The reference in written submissions to 'shifting the cause of the harm to [East Metropolitan]'[303] did not make the position clear. In our view, the same can be said of the passages of the oral closing submissions at trial upon which the first respondent relies which, coming so late in the proceedings, were not to be taken as asserting a wholly new causation point.[304]
[301] Third defendant's closing submissions at trial [79(c)] and [79(d)], [119], BAB 196, 207.
[302] Third defendant's closing submission at trial [119].
[303] Third defendant's closing submission at trial [79(c)].
[304] Appeal ts 97 - 98, referring to ts 998 ‑ 999, 1016 ‑ 1018, 1027.
Whether a subsequent event breaks the chain of causation between an earlier breach and damage is sensitive to a close analysis of the facts and circumstances.[305] Consequently, this is not a case where, by no possibility, the argument could have been met by calling further evidence. That being so, it is not appropriate to allow this new point to be raised for the first time on appeal.[306]
[305] Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, 528; Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112, 122.
[306] Moustakas (497).
Further, and in any event, we would also dismiss the notice of contention on its merits. We do not accept that the fact that Mr Popovic gave 'correct' advice, which, if followed, would have prevented the harm to Mr Panagoulias, broke the chain of causation between Mr Popovic's (assumed) failure to give the appropriate advice to Mr Panagoulias and the harm which Mr Panagoulias suffered (assuming causation is otherwise established). The mere fact that harm arising from one tortfeasor's negligence would have been avoided had a second tortfeasor not acted negligently is not sufficient to break the chain of causation between the first tortfeasor's negligence and the harm.[307] The additional fact that part of East Metropolitan's negligence lay in the failure to follow the advice Mr Popovic gave to Dr Kern does not mean the chain of causation is broken. Mr Popovic's negligence lay in the advice he gave, or did not give, to Mr Panagoulias. Advice Mr Popovic gave to a doctor at RPH does not overwhelm and remove the causal consequences of his (assumed) failure to give the appropriate advice to his patient.
[307] Chapman v Hearse (124).
For these reasons, we would dismiss the notice of contention.

Conclusion

For the above reasons, we would uphold each of the following conclusions reached by the primary judge:
(1)Mrs Panagoulias' evidence of what her husband told her of his telephone conversation with Mr Popovic was sought to be used by East Metropolitan in a manner that infringed the hearsay rule.
(2)Mr Panagoulias acted consistently with what the judge found to be the appropriate advice in that at about 8.30 am, but not earlier, Mr Panagoulias experienced a headache of a severity or kind that was out of the ordinary, and then contacted Mr Popovic.
(3)Assuming Mrs Panagoulias' evidence is admissible, East Metropolitan failed to prove that Mr Popovic did not provide the appropriate advice to Mr Panagoulias in the course of the telephone conversation. Consequently, East Metropolitan failed to prove a breach by Mr Popovic.
(4)Further, East Metropolitan failed to prove that any breach by Mr Popovic caused the harm suffered by Mr Panagoulias.
We would dismiss the appeal and the notice of contention. We would hear from the parties as to costs.

ALLANSON J:

The facts, the decision below and the grounds of appeal are dealt with in detail in the reasons of Murphy and Beech JJA. I differ from their Honours only with respect to Ground 1, and then only as to the reasoning. I too would dismiss Ground 1, but on a more limited basis.
By Ground 1, the appellant asserts:
The trial judge erred in law in determining that the evidence of the witness Fiona Panagoulias (Ms Panagoulias) as to what her husband [the plaintiff] did not say after a telephone conversation with the third defendant (Mr Popovic) was inadmissible to prove as an inferred fact that Mr Popovic did not offer appropriate advice to [the plaintiff] in that conversation; [241] of the reasons.
In particulars, the appellant identified two limbs to Ground 1. First, it asserts that the trial judge erred in law in determining the evidence, sought to be adduced for the purpose identified, was hearsay. Second and alternatively, it asserts that, even if hearsay, the evidence was admissible as an exception to hearsay exclusion of evidence in civil trials.

The evidence

The plaintiff's wife, Ms Panagoulias, gave evidence at trial about the events of 5 October 2007. She described how, after the plaintiff sneezed and a lump of tissue was expelled, they decided to phone Mr Popovic. Ms Panagoulias described what she heard of the phone call:
[The plaintiff] said, 'I've just sneezed and a piece of tissue has come out of my nose. What shall I do?' words to that effect, and I'm not sure - I didn't hear the response because Peter was on the phone. So I didn't hear the response but Peter told me later…[308]
[308] ts 136.
Counsel for the third defendant (the respondent to the appeal) then objected, anticipating that the witness would give hearsay evidence. It was ultimately accepted that the witness could say what the plaintiff later said to her with respect to the piece of tissue, on the basis that it could be used to explain his conduct in putting the tissue in a jar in the fridge.[309] That evidence is not in issue in the appeal.
[309] ts 138.
But Ms Panagoulias was also asked, 'did Peter say that Dr Popovic said anything else'. She replied, 'No'.[310]
[310] ts 138.
Mr Popovic, acting reasonably, was required to tell the plaintiff to be vigilant for anything out of the ordinary in his condition, and to seek further assistance if there were any such changes.[311] That advice could and should have been given when the plaintiff spoke to Mr Popovic on the telephone on the evening of 5 October 2007. The trial judge identified the real issue as 'whether the evidence warrants the conclusion that [appropriate advice] was not given.'[312]
[311] Primary reasons [230].
[312] Primary reasons [232].
Later in the trial, the trial judge returned to the evidence of Ms Panagoulias to ensure there was no misunderstanding about the use that might be made of that evidence. At that point, counsel for the plaintiff confirmed that the plaintiff would rely on Ms Panagoulias' evidence that the plaintiff did not say anything else, and his conduct during the night, to support an inference that nothing more was said by Mr Popovic.[313] For that purpose, the plaintiff also relied on evidence of Mr Popovic's conduct when he spoke to Ms Panagoulias on the morning of 6 October.
[313] ts 448.

Disposition of Ground 1

The rules regarding the admissibility of hearsay evidence are concerned with whether a statement can be treated as evidence of the truth of the facts stated.[314] A statement may be inadmissible for that purpose, even if it is admissible as original evidence to prove some other relevant fact (such as the state of mind of the author of it).
[314] See, for example, Hughes v National Trustees, Executors and Agency Co of Australasia Limited (1979) 143 CLR 134, 150.
The hearsay rule is not confined to verbal assertions of fact. Acts may also contain an implied assertion on the part of the actor which makes it appropriate to treat evidence of those acts for some purposes as the equivalent of hearsay.[315]
[315] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 92 - 93; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283, 303 - 304.
In the present case, as the trial judge said, he was asked to apply the rule to 'an assertion of fact sought to be implied from conduct that is not intended to assert a particular fact.' [316] In my opinion, it is not necessary to delve into the conceptual complexities posed by applying the hearsay rule in those circumstances. Immediately following the finding about which the appellant complains in Ground 1, his Honour said:
even if the evidence were admissible for that purpose, all of the circumstances relied upon by the plaintiff and the first defendant in this respect would not lead me to the inference that I am asked to draw. That is, all of the circumstances in combination would not lead me to conclude that it was probably the case that Mr Popovic did not give appropriate advice, however exactly expressed, to the plaintiff.[317]
[316] Primary reasons [237].
[317] Primary reasons [243].
With respect, I agree with his Honour's conclusion and with the reasons he gave for it.[318] And it is sufficient to determine Ground 1. The error alleged, even if proved, was immaterial.
[318] Primary reasons [244] - [261].
Otherwise I agree with the reasons of Murphy and Beech JJA and have nothing to add.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LW
Associate to the Honourable Justice Beech
31 JANUARY 2019