El-Masri v Molloy

[2015] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

EL-MASRI v MOLLOY & ANOR

[2015] SASCFC 63

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Bampton)

4 May 2015

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES

Appeal against a finding of negligence by a District Court Judge following a trial on liability – first respondent consulted appellant in December 2005 regarding exacerbation of asthma – first respondent asked about menopause towards the end of the conversation – topic of irregular bleeding arose – appellant advised first respondent to return within a certain time if symptoms persist – acceptance of first respondent’s evidence regarding the conversation – acceptance of first respondent’s evidence that the time mentioned for return if symptoms persist was six months and rejection of the appellant’s evidence that the time was one month – at the time of the consultation it was not known that the first respondent was 13 weeks pregnant – pregnancy diagnosed in April 2006 – respondents' son born in June 2006 with Trisomy 21 – significant delay between hearing of evidence and judgment – finding based on respondents’ expert opinion that, given the first respondent’s symptoms, a pregnancy test should have been performed in December 2005 – finding that appellant negligent on the basis of expert opinion as a whole in failing to obtain a history, conduct an examination and make a diagnosis at the consultation or at a follow up examination – finding that the appellant should have arranged a follow up appointment within a period of a month to carry out additional testing – finding that the appellant should have ensured that the first respondent attended a follow up appointment.

Whether the judgment gives adequate reasons for accepting the first respondent’s evidence and rejecting the evidence of the appellant – whether the respective parties’ cases were properly and fairly analysed – whether findings of fact necessary to support the findings of breach of duty were made – whether any definitive findings regarding s 41 of the Civil Liability Act 1936 (SA) were made – whether the finding that the appellant should have ensured the first respondent attended a follow up appointment was based on a ground of negligence not pleaded – whether there are fact finding process errors.

Held (per Blue J and Bampton J, Kourakis CJ agreeing):

1. The reasons for judgment do not explain how the Judge came to the view that the first respondent’s evidence was so reliable – the Judge failed to make any assessment of the appellant’s credibility or that of her witnesses.

2. The Judge failed to make findings about the context in which the conversation about menopause and the topic of irregular bleeding arose – essential to make such findings in order to properly assess the expert medical opinion and make definitive findings pursuant to s 41 of the Civil Liability Act 1936 (SA).

3. The reasons are not underpinned by a reasoning process linking and justifying the findings made.

4. The Judge failed to make a definitive finding regarding s 41 of the Civil Liability Act 1936 (SA).

5. The finding of negligence for failing to have a system of follow up was based on a ground of negligence not pleaded.

6. The effect of the fact finding process errors is that the finding of negligence must be set aside.

7. This Court is not in a position to draw its own inferences of fact or determine the issues and the correct judgment – fairness dictates, in the wake of fact finding process errors, that there be a retrial.

8. Appeal allowed – judgment of the District Court set aside – matter remitted to the District Court for retrial before a different Judge.

Civil Liability Act 1936 (SA) s 41, referred to.
AK v Western Australia (2008) 232 CLR 438; Boylan v Farthing & Ors (Supreme Court of South Australia, Full Court, 27 April 1995, unreported); Coote v Kelly [2013] NSWCA 357; Dagenham Nominees Pty Ltd v Shanks [2003] SASC 219; Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; Fox v Percy (2003) 214 CLR 118; Hawkesbury District Health Service Ltd v Chaker [2010] NSWCA 320; Jones v Bartlett (2000) 205 CLR 166; Kite v Malycha (1998) 71 SASR 321; Lawson v Lee (1978) 19 SASR 442; M v The Queen (1994) 181 CLR 487; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; Molinara v Perre Bros Lock 4 Pty Ltd (2014) 121 SASR 61; Papps v Police (2000) 77 SASR 210; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Rail Commissioner (Formerly Transadelaide) & Anor v Warner (By Her Next Friend Airs) & Anor [2011] SASCFC 90; Rosenberg v Percival (2001) 205 CLR 434; State Rail Authority (NSW) v Earthline Consructions Pty Ltd (In Liq) (1999) 73 ALJR 306; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; T v Medical Board (SA) (1992) 58 SASR 382; Terry v Leventeris (2011) 109 SASR 358; Vagg v McPhee [2013] NSWCA 29; Waterways Authority v Fitzgibbon (2005) 221 ALR 402; Watson v Foxman (1995) 49 NSWLR 315, considered.

EL-MASRI v MOLLOY & ANOR
[2015] SASCFC 63

Full Court:  Kourakis CJ, Blue and Bampton JJ

1. KOURAKIS CJ:   I would allow the appeal.  I agree with the reasons of both Blue J and Bampton J. 

2. The primary deficiency in the reasons is the failure to explain why Dr El‑Masri’s testimony of her practice to advise a return consultation after one month was not accepted.  That deficiency is largely determinative of the remaining issues. 

3. Trial judges have considerable discretion in the form their reasons take.  There is no required template.  However, the primary factual issues and the consequential legal questions must be addressed and analysed, and their resolution explained.

4. BLUE J:       This is an appeal against a judgment by a District Court Judge that the plaintiffs are entitled to damages for losses sustained as a result of the defendant’s negligence.

5. The defendant and appellant, Dr Randa El-Masri, is a general practitioner. On 13 December 2005, the first plaintiff, Therese Molloy, consulted Dr El-Masri about her asthma. Towards the end of the consultation, Mrs Molloy asked Dr El‑Masri about menopause. There was a discussion about menopause, symptoms that Mrs Molloy was experiencing and the possibility of a further appointment.

6. Unbeknown to Mrs Molloy or Dr El-Masri at the time, Mrs Molloy was then 13 weeks pregnant. She learnt in April 2006 that she was pregnant when it was too late to terminate the pregnancy. In June 2006, her fourth child was born with Down syndrome.

7. Mr and Mrs Molloy sued Dr El-Masri in the District Court alleging negligence resulting in a failure to ascertain that Mrs Molloy was pregnant. At a trial on liability only, each party gave evidence and called expert medical witnesses to express opinions on the appropriateness of Dr El-Masri’s conduct during the consultation and whether it accorded with widely accepted competent professional practice.

8. Dr El-Masri’s appeal raises four issues:

   1.Did the Judge fail to make necessary findings or fail to give adequate reasons for findings made so as to amount to an error of law giving rise to a mistrial?

   2.Was it open to Mrs Molloy on her pleadings to contend that Dr El‑Masri was negligent by failing to ensure that Mrs Molloy attended at a subsequent examination and if so did the Judge err in finding that she was so negligent?

   3.Is this Court in a position to decide that Dr El-Masri was or was not negligent and did or did not have a defence under section 41(1) of the Act?

   4.Did the Judge err in finding that causation was established and that Mrs Molloy was not guilty of contributory negligence?

   Background

9. The background, issues at trial and evidence are summarised in the judgment of Bampton J.

10. The conversation during the consultation addressed two topics and was in two discrete parts. For ease of reference, I refer to all conversation about asthma (including any return) as “the asthma discussion” and all conversation about menopause and bleeding (including any return) as “the menopause discussion”.

    The Judge’s reasons

11. In the first section of the Judge’s reasons for judgment, his Honour summarised the issues arising on the pleadings,[1] the elements of the cause of action in negligence and the defence under section 41(1) of the Civil Liability Act 1936 (SA) (the Act).[2]

    [1]    The Judge also rejected a time limitation defence pleaded by Dr El-Masri in respect of which there is no appeal and which can be ignored.

    [2] [2014] SADC 53 at [9]-[52].

12. In the second and largest section of the judgment, under the headings “The Plaintiffs Witnesses” and “The Defendant’s Witnesses” (the Witness Summary section), the Judge summarised the evidence given by the witnesses. The summary of the evidence given by the plaintiffs’ witnesses integrated evidence in chief and cross-examination without distinguishing between them and without transcript references. The summary of the evidence given by the defendant’s witnesses was divided into different sections addressing evidence in chief and cross-examination and included transcript references.

13. The third section of the judgment was entitled “Submissions and Findings” (the Findings section), in which the Judge summarised submissions by the parties and made or reiterated findings on the issue of negligence.

14. The fourth section was entitled “Contributory Negligence” and the final section was entitled “Conclusion”.

15. The Judge made critical findings on what was said during the menopause discussion in the Witness Summary section of the judgment. The Judge made the following findings on this topic during his Honour’s summary of Mrs Molloy’s evidence:

    During the consultation [Mrs Molloy] also asked the doctor what she could tell her about menopause. To her recollection the doctor said “we don’t know much about menopause, it can happen anytime. Go for any length of time.”

    Whilst counsel for the defendant was critical of Mrs Molloy in relation to that evidence, suggesting that it was most unlikely that a general practitioner with the defendant’s experience would say such a thing, in the context of a discussion of onset and duration, I have no difficulty in accepting the plaintiff’s account of that conversation. In any event, in my view, little turns on that.

    The plaintiff and Dr El-Masri then had a discussion about natural products that were available to alleviate the symptoms of menopause. When the defendant asked Mrs Molloy whether she wanted a booklet on the topic, she said yes. She also mentioned that she had irregular vaginal bleeding and told the defendant she was continually wearing panty liners. …She could not recall whether she told the defendant that she thought her last period was in August or December 2005. She said had she been asked about her last menstrual period, she would have described the occasions in August and December when she believed she had her period. …

    … The plaintiff said that the defendant told her that if the irregular vaginal bleeding continued that she should come back in six months and that she would refer her to a gynaecologist. …

    …

    I accept Mrs Molloy’s evidence as to the conversation with Dr El-Masri during the consultation. As I have said, I regard her as a careful and truthful witness. The consultation was personal to her. She was one of many patients for Dr El-Masri. Dr El‑Masri’s notes do not support Dr El-Masri’s version.[3]

    [3] [2014] SADC 53 at [73]-[75], [77] and [83].

16. The Judge made the following findings about what was said during the menopause discussion during his Honour’s summary of Dr El-Masri’s evidence:

    Dr El-Masri said that as the consultation ended, Mrs Molloy asked about the symptoms of menopause. Dr El-Masri replied, “We don’t know when or what age the menopause start and finish.” Dr El-Masri proceeded to tell Mrs Molloy the symptoms of menopause, which included, “hot flushes, night sweat, mood swing, dryness of the vagina… [and] irregular periods.”[4] Mrs Molloy then interrupted Dr El-Masri and said, “It is menopause. I’ve been having irregular bleeding and now I’m 48 years old and I’m wearing panty liner most of the time because I don’t know when I’m going to bleed.”[5]

    [4]    T 313-314.

    [5]    T 313, 328.

    Dr El-Masri told Mrs Molloy that it might not be menopause and it could be something else but they would have to investigate later. Dr El-Masri said she thought there was more of a gynaecological reason for the abnormality of the bleeding. Dr El-Masri said she believed Mrs Molloy was still menstruating but having other bleeding in between because of the way Mrs Molloy presented her case.[6]

    [6]    T 315, 318.

    …

    Dr El-Masri said … Mrs Molloy directed her that she was having regular periods and bleeding in between…[7]

    [7]    T 315-316.

    Dr El-Masri said irregular periods with bleeding in between may have been caused by fibroid, cervical polyp or a hormonal imbalance. Dr El-Masri said she “would have” mentioned some of these causes to Mrs Molloy. ….[8]

    [8]    T 316.

    Dr El-Masri said she told Mrs Molloy to come back in a month’s time if her symptoms persisted or if she had any other concerns. Dr El-Masri also mentioned referral to a gynaecologist. ...[9]

    [9]    T 317, 364.

    Dr El-Masri said she mentioned to Mrs Molloy, a one month time frame to come back and see her because she always gave her patients “who are pregnant with a gynaecological problem”, another cycle, which is usually 28 days, to see if anything was going to correct itself or to see if the change was going to stay there.[10] Dr El-Masri did not record the advice she said she had given Mrs Molloy to return in one month, in her notes.[11]

    …

    I find that there was no basis for Dr El-Masri to make an assumption that Mrs Molloy was still having regular periods. I reject Dr El-Masri’s evidence that she told Mrs Molloy to return in one month if the symptoms persisted. Dr El-Masri had not turned her mind to the possibility that Mrs Molloy was pregnant. Mrs Molloy was not a patient “who was pregnant” although I allow for the possibility that Dr El-Masri intended to say in evidence that she had adopted such a usual practice for patients who were pregnant, or had gynaecological problems.

    In any event, I accept Mrs Molloy’s evidence that Dr El-Masri told her to return in six months.

    …

    Cross-examination

    …

    Dr El-Masri reiterated that she believed that Mrs Molloy was having regular periods. Dr El-Masri could not recall the word that Mrs Molloy said but that was how Dr El‑Masri’s mind was set.[12] Dr El-Masri agreed that she did not record this in her notes.[13]

    …

    Dr El-Masri said she told Mrs Molloy to wait for another month and if the symptom persists or if there were any other concerns, then to come back.[14]

    [10]   T 317, 328.

    [11]   T 366.

    [12]   T 341.

    [13]   T 341.

    [14] [2014] SADC 53 at 127], [128], [131]-[133], [137]-[138], [152] and [162]. (Footnotes retained)

17. The Judge reiterated some of these findings in the Findings section of the judgment. The Judge made the following findings in this section about what was said during the menopause discussion:

    The Consultation

    The plaintiff raised the issue of irregular vaginal bleeding, and the possibility of menopause at the consultation on 13 December 2005.

    …

    I reject the defendant’s evidence[15] that she said to the plaintiff, of the symptoms of irregular bleeding:

    [15]   T 315.

    It might not be menopause, it could be something else, then we have to investigate later.

    I reject the defendant’s evidence that she offered the plaintiff any alternative explanation for the symptoms of irregular bleeding, either generally by saying “it might be something else” or by mentioning any specific alternative causes.

    I also reject the defendant’s evidence[16] that she did not turn her mind to the possibility that the plaintiff might have been pregnant on the basis that:

    [16]   T 315-316.

    She [Mrs Molloy] directed me that she was having regular period and bleeding in between, so that’s why my mind was directed toward gynaecological reason more than obstetric reason.

    I find that there was nothing said by the plaintiff to suggest that she was having periods, and whilst I accept that the defendant may have made that assumption, I find that she was not entitled to do so. Her failure to elicit information from the plaintiff may well be the reason she made that assumption, but that does not excuse her error.

    …

    What was the Arrangement for the Follow Up Appointment?

    I accept the evidence of the plaintiff that Dr El-Masri told her to return in six months, if the symptoms persisted.

    The defendant submitted that Dr El-Masri told Mrs Molloy to come back within one month if the bleeding continues, and Dr El-Masri gave her reasons for allowing a one month time period; namely to have the patient go through another menstrual cycle.[17]

    …

    As I have said, I reject the defendant’s evidence that she told Mrs Molloy to return in one month. Her notes do not say that, and as I have said, I accept the plaintiff’s evidence as to the conversation.

    Dr El-Masri said in evidence that she would have told Mrs Molloy to make an appointment in three days to monitor the progress of Mrs Molloy’s asthmatic condition. There is no suggestion on the evidence that that appointment was made, or requested, or a note provided for that appointment to be made. Such an omission is consistent with, and reinforces my view that, whatever may have been Dr El-Masri’s usual practice in relation to the patients presenting with pregnancy, or gynaecological conditions, or both, she did not in this case tell Mrs Molloy to return within one month.

    Further, and although she was not cross-examined as to the content of the letter, the one month time frame within which Dr El-Masri is said to have told Mrs Molloy to return was not referred to in the letter from Dr El-Masri’s insurer forwarded to Mrs Molloy’s solicitors in December 2006, which said:

    I am instructed that if your client had advised Dr El-Masri that she had missed a period and then suffered irregular bleeding then she would have performed a pregnancy test. However in circumstances where your client had undergone a pap smear by her within 12 months of this presentation and given the very common nature of this presentation Dr El-Masri believed the bleeding was likely to be hormonal and associated with menopause. In those circumstances she appropriately advised your client to return if the symptoms persisted.[18]

    [17]   T 540

    [18] [2014] SADC 53 at [246], [248]-[251], [265]-[266] and [268] and [269]. (Footnotes omitted)

18. In the Witness Summary section of the judgment, the Judge summarised the evidence given by Associate Professor McBride and Dr Kaesehagen called by the plaintiffs and the evidence given by Professor Michael, Associate Professor Watts and Dr Joyner called by the defendants. In the Findings section, the Judge said:

    The defendant submitted that the evidence of Dr Joyner, Associate Professor Watts and Professor Michael, that review in one month after the patient had experienced another menstrual cycle was appropriate, should be accepted.

    Indeed, whilst I accept the opinions expressed by Associate Professor McBride, and find her to be an eminently qualified and impressive witness as to the standard expected of a general practitioner in the discharge of their duty to a patient, it may not be necessary to prefer one expert over another. I formed the view, on the basis of the expert evidence as a whole, that it was incumbent upon the defendant to elicit a full history, to conduct a thorough examination, and to perform the necessary tests.

    ...

    I find, and it is in effect common ground amongst all of the expert witnesses, that further time was needed for a proper investigation of the symptoms of irregular bleeding mentioned by the plaintiff. As I have said, if such time could not be made available on 13 December 2005, then it was incumbent upon the defendant to arrange a follow up appointment within a short time frame, and allow time to elicit a detailed history, conduct an examination, and perform such tests as may be required. The defendant’s failure to do so, of itself, in my view, constitutes a breach of her duty to the plaintiff.

    When asked if telling a patient in the present circumstances to “return if symptoms persist” was sufficient Professor Michael said:

    With someone in this age group with irregular bleeding, I would prefer to examine her, repeat her smear. Yes, that would be somewhat inadequate.

    The failure by the defendant to elicit information from the plaintiff as to the length of time for which the bleeding had been occurring renders the advice to the plaintiff to return, within whatever time frame, “if symptoms persist” ineffectual. Had she elicited even the most basic history, the defendant would have ascertained that the bleeding had been persisting. That simply reinforces my view that it was incumbent upon the defendant, in the discharge of her duty to the plaintiff, to arrange a follow up appointment to make time available to carry out the process of eliciting a detailed history, conducting an examination, and performing the necessary tests.

    Professor Michael agreed that upon eliciting information from a patient that she was having irregular bleeding and wearing a panty liner most of the time, he would, at least at the follow up consultation, elicit a detailed history about the nature and timing of the bleeding, and conduct an examination. He said that the most important part of the consultation after the history is the examination, and he would not do an investigation unless he first examined the patient. He also said that he would, upon examination, had he done it at the time, or a week later, have discovered the 14 week pregnancy.

    …

    Associate Professor Watts was asked whether he would have organised a follow up appointment. He said:

    I probably would have. I probably wouldn’t have – I mean what do you mean by ‘organise’? do you mean take the patient out to the desk and write in an appointment or – I probably wouldn’t have done that but I would have said, I would have impressed on her that I really needed to see her, you know, within the month so that we could sort out the problem.

    And when asked within what time frame, on the limited information available, said:

    The time frame would be, you know, within a month, you know, depending on her need. But two to three weeks maybe, yes, something like that.[19]

    [19] [2014] SADC 53 at [244]-[245], [254]-[257] and [259]-[260].

1. In the Conclusion section, the Judge said:

   I prefer the evidence of Associate Professor McBride, and Dr Kaesehagen, as to the steps that should have been taken, given the symptoms described by the plaintiff. However even had I not done so, I find that on the basis of the expert evidence as a whole, in failing to obtain a history, which would have led to further investigation and examination, and diagnosis, either at that examination or at the follow up examination which Dr El‑Masri should have arranged, she did not act in a manner that was widely accepted as competent professional practice, and that she breached her duty to the plaintiff.

   The defendant’s position, supported by the three expert witnesses called on behalf of the defendant, was that the risk of pregnancy was only one of many possible explanations or causes of the plaintiff’s symptoms of irregular bleeding. Each of the expert witnesses, in effect, said that it would not have been common practice in the context of the consultation described, to take a detailed history, or conduct a series of examinations and tests, to determine the cause, or to test for or exclude pregnancy as one of the causes.

   However, each of the witnesses called on behalf of the defendant agreed that a detailed history should have been taken, and that, amongst other things, a pregnancy test, and examination for pregnancy conducted. Each said that such a detailed further consultation should have taken place within the period of one month or less after the consultation of 13 December 2005. Each said that had that happened, the pregnancy would have been detected, and detected within time to enable the plaintiff to undergo a therapeutic abortion.

   In my view, it follows that upon being told of the symptoms of irregular bleeding, it was incumbent upon Dr El-Masri to either obtain a full history, conduct the examinations and the tests, which, it is common ground, should have been conducted, either at the consultation of 13 December 2005, or in the event that time did not permit such procedures to be carried out at that time, to arrange an early appointment for that specific purpose.[20]

   [20] [2014] SADC 53 at [280]-[283].

2. In the Contributory Negligence section, the Judge said:

   The defendant submitted that … the Court should find the plaintiff guilty of contributory negligence, on the basis that she failed to tell Dr El-Masri at the consultation on 13 December 2005 that she had not had a menstrual period since August 2005; she failed to return to Dr El-Masri or see another medical practitioner for advice as she was asked to do, when her bleeding continued in January; she failed to seek advice from Dr El-Masri, or another medical practitioner, when she did not experience her regular menstrual period; she failed to provide to Dr El-Masri a complete history of her menstrual cycle; she failed to follow the advice of Dr El-Masri that she would need to seek referral to a Specialist Obstetrician/Gynaecologist; and she elected not to seek medical treatment for her condition.

   I make no finding of contributory negligence against the plaintiff. She had no reason to believe that she was pregnant. If the defendant did make some attempt to arrange for the plaintiff to return it was not sufficiently emphasised.

   Even if, contrary to my finding, the plaintiff had been told to make an appointment in one month’s time if symptoms persisted, I do not consider that she should be regarded as having contributed to her own loss.

   …

   As I have found, on the basis of the discussions during the consultation, as to the significance of the plaintiff’s symptoms, she was entitled to assume, and did assume, that her symptoms were explicable by reference to menopause or perimenopause. I do not consider that the fact that she did not make a follow up appointment, even had she been advised to make such an appointment within a month, constitutes contributory negligence on her part, such as to deprive her of a proportion of her damages. The defendant has failed to establish contributory negligence on the part of the plaintiff. [21]

   [21] [2014] SADC 53 at [275]-[277] and [279].

   The contentions on appeal

3. Dr El-Masri contends that the Judge erred in law by failing to make or give adequate reasons for findings as to what was said during the consultation, about the expert medical evidence and about the existence of any widely accepted competent professional practice in Australia within the meaning of section 41(1) of the Act.

4. The Molloys contend that the Judge gave comprehensive and coherent consideration as to what was said during the consultation and because of the way the matter was resolved by the Judge it was unnecessary to make any findings about widely accepted competent professional practice in Australia.

5. Dr El-Masri contends that, to the extent that the Judge found that she was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return, that case was not pleaded by the Molloys and was in any event against the weight of the expert evidence.

6. The Molloys contend that they did plead negligence by failing to arrange a follow-up appointment within a few days and that the expert evidence supported the Judge’s finding that Dr El-Masri was negligent because she had no process to follow up Mrs Molloy if she did not attend for further investigation.

7. Dr El-Masri contends that, on the evidence adduced at trial, the Judge should have held that she was not negligent and in any event that she had established that she acted in a manner that was widely accepted competent professional practice in Australia within the meaning of section 41(1) of the Act.

8. The Molloys contend that Dr El-Masri has not shown factual error on the part of the Judge or demonstrated positively that the Judge erred in making the findings that his Honour did. The Molloys contend that the section 41(1) defence was not open in the circumstances of the case because Dr El-Masri had no process to follow up Mrs Molloy if she did not attend for further investigation.

9. Dr El-Masri contends that the Judge should have found that Mrs Molloy’s conduct after the consultation was unreasonable and negated any causal relationship between Dr El-Masri’s alleged negligence and Mrs Molloy’s loss of opportunity to undertake a therapeutic termination. Alternatively, the Judge erred in failing to find Mrs Molloy guilty of contributory negligence in failing to return for further consultation notwithstanding ongoing irregular bleeding and possible pregnancy symptoms.

10. The Molloys contend that the burden of proof was on Dr El-Masri to prove contributory negligence and she failed to discharge that burden.

    Adequacy of reasons

11. A failure to give adequate reasons for judgment is an error of law.[22] It usually gives rise to a mistrial.[23]

    [22]   T v Medical Board (SA) (1992) 58 SASR 382 at 394 per Matheson J (with whom Debelle J agreed) and 423 per Olsson J; Boylan v Farthing & Ors (Supreme Court of South Australia, Full Court, 27 April 1995, unreported) per Olsson J (with whom Cox and Mulligan JJ agreed); Papps v Police [2000] SASC 183, (2000) 77 SASR 210 at [33] per Gray J (with whom Olsson and Wicks JJ agreed).

    [23]   Boylan v Farthing & Ors (Supreme Court of South Australia, Full Court, 27 April 1995, unreported) per Olsson J (with whom Cox and Mulligan JJ agreed). 

12. The adequacy of reasons depends upon the nature and circumstances of the case.[24] Reasons must be coherent, intelligible and comprehensive.[25] Reasons are inadequate if:

    (a)     the appeal court is unable to ascertain the reasoning upon which the decision is        based; or

    (b)justice is not seen to have been done.

    The two above stated criteria of inadequacy will frequently overlap.  If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.[26]

    [24]   Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 per Gray J (with whom Fullagar and Tadgell JJ agreed); Papps v Police (2000) 77 SASR 210 at [28] and [34] per Gray J (with whom Olsson and Wicks JJ agreed).

    [25]   Lawson v Lee (1978) 19 SASR 442 at 446 per Hogarth ACJ, Bright and King JJ; Papps v Police (2000) 77 SASR 210 at [34] per Gray J (with whom Olsson and Wicks JJ agreed)

    [26]   Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 per Gray J (with whom Fullagar and Tadgell JJ agreed) approved in Papps v Police (2000) 77 SASR 210 at [34] per Gray J (with whom Olsson and Wicks JJ agreed).

    What was said during the consultation

13. Dr El-Masri contends that the Judge’s reasons concerning what was said during the consultation are inadequate because:

    1.the Judge preferred the evidence of Mrs Molloy over that of Dr El‑Masri as a matter of credit without commenting on Dr El‑Masri’s honesty or demeanour or assessing whether her evidence was honest or reliable;

    2.the Judge made that finding without reference to the specific evidence given by each of Mrs Molloy and Dr El-Masri or any explicit set of findings as to how the consultation proceeded or what was said, by whom and when, or giving coherent and comprehensive reasons why Mrs Molloy’s evidence should be preferred;

    3.the Judge did not make a finding concerning what was said by Mrs Molloy about her most recent period;

    4.the Judge did not give adequate reasons explaining why he found that Dr El-Masri told Mrs Molloy to return in six months if her symptoms persisted; and

    5.the Judge failed to set out in any comprehensive way exactly what happened and what was said during the consultation.

14. The Molloys take issue with these contentions and contend that the Judge made all findings necessary to support the conclusion reached and gave adequate reasons for them.

    Credit findings

15. In the section of his judgment summarising Mrs Molloy’s evidence extracted at [15] above, the Judge said that he accepted Mrs Molloy’s evidence as to the conversation with Dr El-Masri during the consultation. The Judge said that he regarded Mrs Molloy as a careful and truthful witness. This conclusion is expressed to be a global credit finding going to both the honesty and reliability of Mrs Molloy’s evidence.

16. While the Judge referred to the fact that the consultation was personal to Mrs Molloy whereas Dr El-Masri had many patients, the Judge did not identify how Mrs Molloy demonstrated a superior memory of the consultation and a review of the transcript does not bear this out. This could only be one factor of many in an overall credit assessment. While the Judge said that Dr El-Masri’s notes did not support Dr El-Masri’s version, the Judge did not identify why this was so and it was common ground on both witness’s versions that Dr El-Masri’s notes did not purport even to be a summary or dot points of the conversation. Again, this could only be one factor of many in an overall credit assessment.

17. In the Findings section extracted at [17] above, the Judge said that he rejected Dr El-Masri’s evidence that she said that the irregular bleeding might not be menopause and could be something else; that Mrs Molloy indicated that she was having regular periods with bleeding in between; and that Dr El-Masri told Mrs Molloy to come back within one month if the bleeding continued.

18. The Judge did not say whether he considered that Dr El-Masri was a dishonest witness on the one hand or was honest but unreliable on the other hand. Self-evidently, the Judge did not give reasons for assessing Dr El-Masri as a dishonest witness or as an unreliable witness. The Judge’s preference for Mrs Molloy’s evidence was largely based on a global credit assessment of the two witnesses. While the Judge’s findings were not, and should not have been, based exclusively on a global credit assessment because it was necessary also to consider the specific respects in which their evidence differed, as long as the Judge’s findings were based to any extent upon a global credit assessment, it was essential that the Judge identify whether he assessed Dr El-Masri’s evidence as dishonest or unreliable and give reasons for that assessment. In the absence of doing so, Dr El-Masri is denied knowledge of why her case was rejected[27] and this Court is precluded from considering whether the Judge’s credit findings are vitiated.[28]

    [27]   See the quotation from Sun Alliance Insurance Ltd v Massoud extracted at [30] above.

    [28]   See Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-128 per Gleeson CJ, Gummow and Kirby JJ.

19. Before making an overall credit finding, it was essential for the Judge to set out side by side each part of the conversation during the consultation on which there was a material difference between the two parties, compare the evidence given by each party on each such topic and identify how the Judge’s assessment of that evidence impacted upon the overall credit assessment. The Judge did not do this.

    Discussion concerning menstrual periods

20. While credit findings by the Judge would obviously inform factual findings about what was said on specific topics, it was still necessary for the Judge to make specific factual findings on material aspects of the conversation where there were significant differences and give reasons for those findings.

21. One critical issue related to what was said by Mrs Molloy about her menstrual periods. Mrs Molloy said in evidence in chief that she introduced the topic by asking Dr El-Masri what she could tell her about menopause as she believed her periods were changing.[29] She said that she mentioned that she had irregular vaginal bleeding and wore a panty liner.[30] She said that she had what she believed at the time was a normal period in the first week of December. She recalled having one period at the beginning of August, one period at the end of August, did not to her knowledge have a period in September and in October had what she regarded as irregular vaginal bleeding.[31] She said in cross-examination that she did not recall one way or the other whether she told Dr El-Masri when her most recent period had been.[32] She said in evidence in chief that, if asked when her last period was, she would have told Dr El-Masri about the August episode and the December episode.[33] She accepted in cross-examination however that, if Dr El-Masri had asked her when she had her last period, she would have said the first week in December.[34]

    [29]   T 46/7-9.

    [30]   T 46/13-15.

    [31]   T 37/31-39/18.

    [32]   T 123/2-4.

    [33]   T 47/35-38.

    [34]   T 86/27-30.

22. Dr El-Masri gave evidence that, while she could not recall word for word what Mrs Molloy said, what she did say led her to understand that Mrs Molloy was still menstruating but was having irregular bleeding in between her periods.[35] Dr El-Masri said that she did not recall one way or the other whether she was told by Mrs Molloy when she had her last period.[36]

    [35]   T 315/6-19, 35-38; 333/9-10; 341/2-10.

    [36]   T 319/7-9

23. The Judge did not make an explicit finding as to what was said on the topic of Mrs Molloy’s last period. The Judge rejected Dr El-Masri’s evidence that Mrs Molloy led her to believe that she was having periods. The Judge did not refer to the possibility, which was open on the evidence of both Mrs Molloy and Dr El‑Masri summarised in the previous two paragraphs, that Mrs Molloy told Dr El-Masri that her last period had been in the first week of December. In the circumstances, it was essential for the Judge to refer to that evidence and analyse it before making any finding about what was or was not said about Mrs Molloy’s periods.

    Return in one month or six months

24. The Judge explicitly accepted Mrs Molloy’s evidence that Dr El-Masri told her to return in six months[37] and rejected Dr El-Masri’s evidence that she told Mrs Molloy to return in one month, in each case if Mrs Molloy’s symptoms persisted.[38]

    [37]   In the passage extracted at [15] and [16] above.

    [38] In the passage extracted at [16] above.

25. The Judge did not give a reason for accepting Mrs Molloy’s evidence on this topic (aside from his Honour’s general favourable credit finding). The Judge gave two reasons for rejecting Dr El-Masri’s evidence: Dr El-Masri’s notes did not refer to returning in one month and the Judge accepted Mrs Molloy’s evidence to the contrary.[39] Dr El-Masri’s notes were neutral as to time frame because they did not mention any time frame when it was common ground on the evidence of both parties that Dr El-Masri did mention a timeframe. Merely saying that the Judge accepted Mrs Molloy’s evidence did not give a reason for preferring her evidence over that of Dr El-Masri.

    [39] [2014] SADC 53 at [268] extracted at [17] above.

26. After giving these two reasons for rejecting Dr El-Masri’s evidence, the Judge went on to say that Dr El-Masri gave evidence that she would have told Mrs Molloy to make an appointment in three days to monitor the progress of her asthmatic condition during the asthma discussion but there was no evidence that such an appointment was made or requested and that omission reinforced the Judge’s view that Dr El-Masri did not tell Mrs Molloy to return within one month during the menopause discussion.[40] The Judge had earlier made a finding that Dr El-Masri did not tell Mrs Molloy to return in three days’ time but prefaced that finding by saying “Whilst it may be that nothing turns on it”. If nothing turned on the three day finding, it could not affect the finding about what was said concerning return during the menopause discussion. Conversely, if the three day finding did reinforce a finding about what was said concerning return during the menopause discussion, it was incumbent on the Judge to give reasons for making the three day finding. This was especially so given that Dr El-Masri said that she recalled telling Mrs Molloy to return in three days in addition to its being her normal practice,[41] Dr El-Masri was not challenged in cross-examination in this respect, Mrs Molloy accepted in cross-examination that Dr El-Masri may have told her to return in three days[42] and the fact that Mrs Molloy did in fact return within three days (returning the following day).

    [40] [2014] SADC 53 at [269] extracted at [17] above.

    [41]   T 102/29-38.

    [42]   T 308/9-14.

27. The Judge also went on to refer to a letter from Dr El-Masri’s insurer to the Molloys’ solicitors in December 2006 that said that Dr El-Masri appropriately advised Mrs Molloy to return if the symptoms persisted and did not refer to a timeframe.[43] While this is neutral in any event because it was common ground that Dr El-Masri did mention a timeframe during the consultation, more importantly the Judge prefaced the reference to the letter by saying that Dr El‑Masri was not cross examined as to its content.[44] In the absence of cross‑examination, it was not possible to know whether the author of the insurer’s letter made the statement on the basis of reading Dr El-Masri’s patient notes or explicit instructions from Dr El-Masri on the detail of the discussion including as to whether it included any timeframe.

    [43] [2014] SADC 53 at [270] extracted at [17] above.

    [44] [2014] SADC 53 at [270] extracted at [17] above.

28. The issue of the timeframe mentioned by Dr El-Masri for return was a critical issue at trial because all of the medical experts agreed that it would have been manifestly inappropriate to suggest a six month timeframe. Given the criticality of the issue, it was incumbent on the Judge to analyse the difference in the evidence given by the two parties and give reasons for making the factual finding that Dr El-Masri mentioned a six month timeframe. It required analysis in addition to a global credit finding as between Mrs Molloy and Dr El-Masri. In particular, it required reference to and analysis of the inherent improbability that Dr El-Masri would have acted in a manifestly inappropriate manner. It also required reference to, a finding made and analysis of Dr El-Masri’s evidence that it was her usual practice to mention a timeframe of one month in relation to patients presenting with gynaecological conditions. While these matters did not dictate a finding in favour of Dr El-Masri, they did require analysis and explanation.

    Comprehensive findings as to what was said

1. Leaving aside the topics of timeframe for return and Mrs Molloy’s last period addressed above, the Judge addressed two other topics the subject of evidence about the menopause discussion[45] but did not address several other topics about which evidence was given.

   [45]   These are addressed at [49]-[51] and [54] below.

2. Mrs Molloy and Dr El-Masri both said that Mrs Molloy introduced the topic of menopause when the consultation insofar as it dealt with asthma was finished. They both said that Mrs Molloy asked a general question about menopause. Mrs Molloy said that she asked what Dr El-Masri could tell her about menopause as she believed her periods were changing and she would like to know about menopause.[46]  Dr El-Masri said that Mrs Molloy asked what were the symptoms of menopause.[47] Neither witness was challenged in cross‑examination on their account. The Judge in the Witness Summary omitted Mrs Molloy’s statement that she believed her periods were changing. Although there was no challenge by Dr El-Masri to Mrs Molloy’s evidence that she said this and the Judge said that he accepted Mrs Molloy’s evidence, it was important that the Judge make a finding whether this was said because, as appears above, what was said on the topic of Mrs Molloy’s periods was a critical issue at trial.

   [46]   T 46/7-9.

   [47]   T 312/32.

3. Mrs Molloy said that Dr El-Masri responded to her question by saying words to the effect “We don’t know much about menopause, it can happen any time. Go for any length of time.”[48] Dr El-Masri, by contrast, said that she responded to the question by saying words to the effect “We don’t know when or what age the menopause start and finish”.[49] When Dr El-Masri’s version was put to her during cross-examination, Mrs Molloy said that she would stick with her original statement “We don’t know much about menopause” she accepted that it was possible that Dr El-Masri said “We don’t know when the symptoms of menopause might start and finish”.[50] Dr El-Masri was not challenged in cross‑examination as to her version.

   [48]   T 46/9-11.

   [49]   T 313/12-14.

   [50]   T 215/8-18.

4. The Judge appears to have accepted Mrs Molloy’s version over Dr El‑Masri’s version. The Judge included Mrs Molloy’s version in his summary of her evidence but made no reference to Dr El-Masri’s version in his summary of her evidence. After summarising Mrs Molloy’s evidence, the Judge said:

   …in the context of a discussion of onset and duration, I have no difficulty in accepting the plaintiff’s account of that conversation. In any event, in my view, little turns on that.[51]

   [51] [2014] SADC 53 at [74]. See the quotation extracted at [15] above.

5. The Judge gave no reasons for preferring Mrs Molloy’s version over Dr El‑Masri’s version. In the circumstances, while it was open to the Judge to do so, it was incumbent upon the Judge first to refer to and analyse Mrs Molloy’s acceptance in cross-examination that Dr El-Masri’s version might possibly be correct, Dr El-Masri’s evidence in chief and the absence of a challenge in cross‑examination to Dr El-Masri’s version. It is possible that the Judge meant to say that it was implicit from the context of the conversation that Dr El-Masri’s reference to ignorance about menopause was confined to its onset and duration and that he was not preferring Mrs Molloy’s version over Dr El-Masri’s, but his Honour’s reasons do not make it clear that this is the case.

6. Dr El-Masri gave evidence that she told Mrs Molloy that the symptoms of menopause included hot flushes, night sweat, mood swing, dryness of the vagina, irregular bleeding.[52] When this was put to her in cross-examination, Mrs Molloy said that she did not recall it but it was possible and she could not deny it.[53] The Judge did not make any finding about the conversation on this topic. The issues of negligence and widely accepted competent professional practice required an assessment of the entirety of the conversation. Adequate reasons required the Judge to make a finding about this aspect of the conversation.

   [52]   T 313/31-32.

   [53]   T 106/27-34; 111/29-112/17.

7. Dr El-Masri gave evidence that, while she was narrating the symptoms of menopause, Mrs Molloy interrupted her and said that it was menopause because she had been having irregular bleeding, was now 48 years old and was wearing panty liner most of the time because she did not know when she was going to bleed.[54] Dr El-Masri’s version in this respect was put to Mrs Molloy in cross‑examination together with a suggestion that Dr El-Masri said that if her bleeding continued she should come back in a month. Mrs Molloy agreed with that version except for the reference to coming back in a month as opposed to six months.[55] The Judge did not make any finding about the conversation on this topic. In the circumstances, adequate reasons required the Judge to make a finding about this aspect of the conversation.

   [54]   T 313/33-36.

   [55]   T 114/1-15

8. The Judge rejected Dr El-Masri’s evidence (given during evidence in chief) that she told Mrs Molloy that the irregular bleeding might not be due to menopause and there could be other causes. The Judge did not give any reasons for rejecting that evidence or refer to Mrs Molloy’s evidence on that topic or to Dr El-Masri’s cross-examination on that topic. Dr El-Masri’s version in this respect was put to Mrs Molloy in cross-examination together with a suggestion that Dr El-Masri said that if her bleeding continued she should come back in a month. Mrs Molloy agreed with that version except for the reference to coming back in a month as opposed to six months.[56] Dr El-Masri was not challenged in cross-examination as to her evidence that she told Mrs Molloy that the irregular bleeding might not be due to menopause and there could be other causes. Given the evidence, it was incumbent on the Judge to give reasons for rejecting Dr El‑Masri’s evidence on this topic.

   [56]   T 114/1-15

   The expert evidence

9. Dr El-Masri contends that the Judge’s reasons concerning the expert evidence are inadequate because:

   1.the Judge did not make a clear finding concerning the differences of opinion between the expert witnesses called by the Molloys and those called by Dr El-Masri and, to the extent that his Honour preferred the opinions expressed by the expert witnesses called by the Molloys, did not give coherent and comprehensive reasons for doing so;

   2.the failure to make specific findings concerning what happened and what was said during the consultation resulted in there being no factual basis to which the opinions expressed by the doctors could be applied; and

   3.the Judge did not make a clear finding regarding the existence of any widely accepted competent professional practice in Australia.

10. The Molloys take issue with these contentions and contend that the Judge made all findings necessary to support the conclusion reached and gave adequate reasons for them.

    Findings on differences

11. In Dagenham Nominees Pty Ltd v Shanks,[57] expert evidence was given by Mr Peachey called by the plaintiff and Mr Pearce called by the defendant. The trial Judge did not give reasons for preferring the evidence of Mr Pearce. This was held to be an error of law resulting, together with other inadequacies in the Judge’s reasons, in a mistrial. Lander J (with whom Debelle and Nyland JJ agreed) said:

    [The trial Judge] was entitled to prefer the evidence of one expert to another but only if there were reasons for so doing. The trial Judge has expressed no reasons as to why he preferred the evidence of Mr Pearce whose evidence he describes as "the most reliable". He was also obliged, in my opinion, if he was to reject Mr Peachey's evidence to explain why his evidence was to be rejected.[58]

    [57] [2003] SASC 219.

    [58] At [76].

12. In the Witness Summary section of the judgment, the Judge said that he accepted the opinions expressed by Associate Professor McBride and found her to be an eminently qualified and impressive witness as to the standard expected of a general practitioner in the discharge of their duty to a patient. In the Conclusion section, the Judge said that he preferred the evidence of Associate Professor McBride and Dr Kaesehagen as to the steps that should have been taken given the symptoms described by the plaintiff.

13. The Judge did not give any reasons for preferring the opinions expressed by Associate Professor McBride and Dr Kaesehagen over the opinions expressed by Professor Michael, Associate Professor Watts and Dr Joyner.

    Factual basis for opinions

14. The Judge considered that, even accepting the opinions expressed by Professor Michael, Associate Professor Watts and Dr Joyner, Dr El-Masri was negligent.

15. Insofar as the Judge made a factual finding that Dr El-Masri told Mrs Molloy to return in six months if her symptoms persisted, all of the expert medical witnesses expressed the opinion that this would have been inappropriate. However, the Judge’s finding that Dr El-Masri told Mrs Molloy to return in six months if symptoms persisted is vitiated by the inadequacy of the Judge’s reasons addressed above.

16. The Judge went on to consider whether Dr El-Masri was negligent on the assumption that Dr El-Masri told Mrs Molloy to return in one month if her symptoms persisted. Professor Michael, Associate Professor Watts and Dr Joyner made it clear in their evidence that the appropriateness of treatment depends on precisely how a patient raises a matter and what is said on the topic. It was not possible in the circumstances to make findings based on the opinions expressed by Professor Michael, Associate Professor Watts and Dr Joyner without first making comprehensive findings on the entirety of the relevant discussion during the consultation, which the Judge failed to do for the reasons given above.

17. In Dagenham Nominees Pty Ltd v Shanks,[59] Lander J (with whom Debelle and Nyland JJ agreed) said:

    [The trial Judge] could only choose between the experts after he had determined whether the facts and assumptions upon which the expert opinions were based were consistent with any findings he made in relation to those matters. Like in any other trial which depends upon expert evidence the expert's evidence can only be accepted if the experts expose the facts and assumptions upon which their opinions are based and those facts and assumptions can coincide mainly with the findings made by the trial Judge.

    The trial Judge has made no findings in relation to the matters upon which the experts based their opinions. He has not determined appropriate criteria upon which calculations should have been made to determine the appropriate strength of the mast to satisfy the purpose.

    …

    He was also obliged to determine whether Mr Pearce's opinions were based upon assumptions which he had found and that in those circumstances he could accept the opinion.[60]

    [59] [2003] SASC 219.

    [60]   At [74]–[75], [77].

18. As observed above, the Judge did not make comprehensive findings about the entirety of the menopause discussion.

    Findings on widely accepted practice

19. The onus of proof of negligence lies upon a plaintiff and for this purpose the standard of care is that of a reasonable person in the defendant’s position knowing what the defendant knew or ought reasonably to have known.[61] By way of contrast, it is a defence available to a professional service provider in respect of which the onus of proof lies on the defendant to establish that the defendant acted in a manner that was widely accepted in Australia by members of the same profession as competent professional practice.[62]

    [61] Civil Liability Act 1936 (SA) s 31.

    [62] Civil Liability Act 1936 (SA) s 41(1).

20. Dr El-Masri complains that the Judge did not make any clear finding regarding the existence of any widely accepted practice in Australia. Again, this would not have mattered if the Judge’s finding that Dr El-Masri told Mrs Molloy to return in six months if symptoms persisted survived, but that finding is vitiated by the inadequacy of the Judge’s reasons.

21. In analysing the opinions expressed by the medical experts, the Judge did not separate his analysis of the issue of widely accepted practice arising under section 41(1) of the Act from his analysis of the issue of negligence. It was necessary to analyse the two issues separately on the basis of comprehensive findings as to the entirety of the menopause discussion.

    Conclusion on adequacy of reasons

22. The Judge’s findings about what was discussed during the menopause discussion and as to the issues addressed by the expert medical evidence are deficient and the Judge’s reasons for the findings that were made on those topics are inadequate. The inadequacy of the reasons vitiates the findings and, subject to the other arguments by the parties on appeal about to be addressed, resulted in a mistrial.

    Failure to follow up on Mrs Molloy making an appointment

23. Dr El-Masri contends that, to the extent that the Judge found that she was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return, that case was not pleaded by the Molloys and was in any event against the weight of the expert evidence.

24. The Molloys take issue with these contentions and contend that, even if the Judge’s conclusions as to negligence are otherwise vitiated for inadequacy of reasons, the judgment can be upheld on this particular of negligence.

25. It is important to distinguish between two different particulars or potential particulars of negligence. First, an allegation that Dr El-Masri was negligent by telling Mrs Molloy to return, albeit within a timeframe of one month, if symptoms persist rather than telling her to return in one month regardless of ongoing symptoms. Secondly, an allegation that Dr El-Masri was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return.

26. The Judge included in the Findings section two subsections under the headings “Follow Up Appointment” and “What was the Arrangement for the Follow Up Appointment?”  In the former subsection, the Judge addressed the first allegation but did not address or make findings concerning the second allegation referred to in the previous paragraph. The Judge said:

    In my view, the law imposes a duty on medical practitioners to take a proactive approach to the following up of patients, their signs and symptoms, and to provide them with sufficient information about the need and priority for further medical attention. That duty extends to the provision of reasonable steps to have the patient return for further appointments and examination or investigation, if required.

    Associate Professor Watts was asked whether he would have organised a follow up appointment. He said:

    I probably would have. I probably wouldn’t have – I mean what do you mean by ‘organise’? do you mean take the patient out to the desk and write in an appointment or – I probably wouldn’t have done that but I would have said, I would have impressed on her that I really needed to see her, you know, within the month so that we could sort out the problem.

    And when asked within what time frame, on the limited information available, said:

    The time frame would be, you know, within a month, you know, depending on her need. But two to three weeks maybe, yes, something like that.

    The duty also extends to a responsibility to provide sufficient advice about the consequences of not pursuing such matters, so that the patient may make informed decisions about whether to return.

    …

    Whilst the defendant submitted that there was no allegation of a breach of duty by Dr El-Masri in relation to the follow up advice given by her to the plaintiff, the plaintiff pleaded, by paragraph 11.5 of the statement of claim, that the defendant “failed to arrange a follow up appointment within a few days to further consider the first plaintiff’s gynaecological issues.” I find that the defendant was under a duty to do so.[63]

    [63] [2014] SADC 53 at [258]-[261] and [264]. (Footnotes omitted)

27. In the final paragraph of the latter subsection under the heading “What was the Arrangement for the Follow Up Appointment?”, the Judge said:

    I agree with the plaintiff’s submission that whatever construction may be placed upon the defendant’s advice to the plaintiff to make a further appointment, the defendant took no action to ensure that the plaintiff attended such an appointment, and no action to follow up on the patient’s non-attendance. There was no evidence led that the defendant had either a formal or informal mechanism in place to facilitate follow up appointments by patients.[64]

    [64] [2014] SADC 53 at [274].

28. To the extent that the Judge in this paragraph upheld a contention by Mrs Molloy in the nature of the second allegation referred to at [71] above, the Judge did not give any reasons for finding that it was negligent for Dr El-Masri not to have created or implemented a system to follow-up patients who had been told to return in the future to ensure that they did in fact return or why there was not a widely accepted competent professional practice amongst general practitioners not to create or implement such a system.

    Pleading

29. The first allegation referred to at [71] above was, as the Judge observed, clearly pleaded in paragraph 11.5 of the statement of claim and no point is taken by Dr El-Masri on appeal that it was not open to Mrs Molloy to run that case.[65]

    [65]   I address the parties' contentions about the merits of that case in the next section below.

30. The Molloys contend that the second allegation was also pleaded. The Molloys rely on the same paragraph 11.5 of the statement of claim which pleaded that Dr El-Masri:

    Failed to arrange a follow-up appointment within a few days to further consider the first plaintiff’s gynaecological issues.

31. This contention must be rejected. Paragraph 11.5 is apt to support the first allegation and is the only paragraph capable of doing so. It is not apt to support the second allegation and is incapable of supporting both allegations.

32. Sometimes a party by her or his conduct permits the opponent to run a case at trial outside the opponent’s pleadings, in which case the first party cannot be heard to complain on appeal that the case was outside the pleadings. The Molloys do not contend that this is such a case.

    Merits

33. Given that the Molloys did not plead that Dr El-Masri was negligent by not creating and implementing a system to follow-up patients who had been told to return in the future to ensure that they did in fact return, it is not necessary to consider the merits of such a case on the evidence adduced at trial. It is undesirable to do so because, for the reasons given above and below, the case must be remitted to the District Court for retrial and further it is inevitable that different evidence will be adduced at the retrial.

    Negligence and widely accepted practice defence

34. Dr El-Masri contends that, on the evidence adduced at trial, the Judge should have held that she was not negligent and in any event that she had established the defence under section 41(1) of the Act.

35. Conversely, the Molloys contend that, even if the evidence of Dr El-Masri and the opinions expressed by the expert doctors called by her are accepted, Dr El-Masri was negligent and failed to establish the defence.

    Negligence

36. Dr El-Masri submits that this Court can and should make its own factual findings about what was said during the menopause discussion and resolve the competing versions given by Mrs Molloy and Dr El-Masri in their evidence at trial. Dr El-Masri submits that her version should be accepted and, if her version is accepted, she was not negligent.

37. As noted above, factual findings about the content of the discussion depend to a degree, although not exclusively, on an assessment of the honesty and reliability of the evidence given by each of Mrs Molloy and Dr El-Masri. This Court did not hear or see the witnesses give evidence and is in no position to make credit findings of its own. It follows that this Court cannot make factual findings about the content of the discussion.

1. If Mrs Molloy’s version of the discussion that she was told to return in six months if her symptoms persisted were accepted, it is clear on all of the expert medical evidence adduced at trial that Dr El-Masri would have been negligent and her advice would not have accorded with any generally accepted practice in Australia. It follows that Dr El-Masri’s contention that this Court can and should determine that she was not negligent must be rejected.

2. The Molloys contend that, even if the evidence of Dr El-Masri and the opinions expressed by the expert doctors called by her are accepted, Dr El-Masri was negligent. The Molloys contend that Professor Michael, Associate Professor Watts and Dr Joyner each accepted that it was inappropriate to advise Mrs Molloy merely to return in one month’s time if her symptoms persisted and that she should have been advised to return in one month’s time in any event for a full investigation. The Molloys rely upon concessions said to have been made by the doctors to this effect during cross-examination and on a conclusion to this effect expressed by the Judge in the Findings section of his judgment.

3. For the reasons given at [47]-[54] and [62]-[64] above, before considering what was appropriate practice it is essential to make factual findings about the entire content of the menopause discussion. Any opinion expressed by an expert about appropriate practice must be based upon assumptions of fact as to that content.

4. In cross-examination, the questions put to Professor Michael, Associate Professor Watts and Dr Joyner about appropriate practice in terms of a return for a further consultation were not premised on a set of assumptions incorporating the full extent of the discussion at the consultation on Dr El-Masri’s version. In the absence of this having been done, this Court cannot determine whether Dr El‑Masri’s conduct during the consultation was appropriate or inappropriate. Bampton J analyses in detail the evidence given by Professor Michael, Associate Professor Watts and Dr Joyner on the issue of the appropriateness of advice to return in one month if symptoms persisted. I agree with Bampton J’s analysis and with her Honour’s conclusion that the cross-examination of the medical experts called by the defence did not establish that, assuming acceptance of Dr El‑Masri’s version of the entirety of the menopause discussion, Dr El-Masri’s advice about return was inappropriate. It follows that the Molloys’ contention that this Court can and should determine that Dr El-Masri was negligent must be rejected.

   Widely accepted practice

5. Dr El-Masri submits that this Court can and should make its own factual findings about what was said during the menopause discussion. Dr El-Masri submits that her version should be accepted and, if her version is accepted, she established that she acted in a manner that was widely accepted in Australia by general practitioners as competent professional practice within the meaning of section 41(1) of the Act.

6. Dr El-Masri’s contention must be rejected for the same reasons as her contention that this Court should find that she was not negligent.

7. The Molloys contend that, even if the evidence of Dr El-Masri and the opinions expressed by the expert doctors called by her are accepted, Dr El-Masri failed to establish that she acted in a manner that was widely accepted in Australia by general practitioners as competent professional practice.

8. The Molloys’ contention does not strictly arise because it is dependent on the equivalent contention in respect of negligence being accepted. In any event, it must be rejected for the same reasons as their contention that this Court should find that Dr El-Masri was negligent.

   Causation and contributory negligence

9. Dr El-Masri contends that the Judge should have found that Mrs Molloy’s conduct after the consultation was unreasonable and negated any causal relationship between Dr El-Masri’s alleged negligence and Mrs Molloy’s loss of opportunity to undertake a therapeutic termination. Alternatively, the Judge erred in failing to find Mrs Molloy guilty of contributory negligence by failing to return for further consultation notwithstanding ongoing irregular bleeding and possible pregnancy symptoms.

10. Mrs Molloy takes issue with these contentions.

    Causation

11. It is not possible for this Court to consider the issue of causation in the absence of findings about what was said during the consultation. On Mrs Molloy’s version that she was told to return in six months if her symptoms persisted, it cannot be said that her decision not to return within one to four months broke the chain of causation. It follows that Dr El-Masri’s contention that this Court can and should determine that, even if Dr El-Masri was negligent, the Molloys must fail on the issue of causation must be rejected.

    Contributory negligence

12. It is likewise not possible for this Court to consider the issue of contributory negligence in the absence of findings about what was said during the consultation. Whether Mrs Molloy was negligent in a manner that contributed to the plaintiffs’ losses cannot be determined in the absence of a factual matrix that includes findings on the entirety of the menopause discussion. It follows that Dr El-Masri’s contention that this Court can and should determine that, if Dr El‑Masri was negligent, Mrs Molloy must have been contributorily negligent must be rejected.

    Conclusion

13. I would allow the appeal. I would set aside the judgment and remit the matter for retrial. The retrial should be heard by a different Judge. Out of an abundance of caution, I emphasise that no inference should be drawn one way or the other as to my views concerning what was said during the consultation, whether Dr El-Masri was negligent, whether Dr El-Masri’s conduct was in accordance with widely accepted competent professional practice, whether any negligence by Dr El-Masri caused the plaintiffs’ losses or whether Mrs Molloy was contributorily negligent. These will all be issues to be determined on the retrial on the basis of whatever evidence is adduced at the retrial.

14. BAMPTON J:  Dr Randa El-Masri appeals against a finding of negligence by a District Court Judge following a trial on liability.

    Background

15. In December 2005 Therese Molloy was a 48 year old mother of three children the youngest of whom was 12.  Mrs Molloy married her second husband, Stephen Molloy, in 2002.  Mr Molloy had five children from a previous relationship who were regular visitors to the home he shared with Mrs Molloy and her children.  Life was busy and sharing the parenting of eight children brought with it financial constraints for the Molloys.  Mrs Molloy, understandably, did not want to have any more children.

16. Mrs Molloy also had a career as a primary school teacher.  She had undertaken graduate studies, obtained a graduate certificate in Asian Studies, and won scholarships to Japan and China.

17. Mrs Molloy completed a Master’s degree in Education in 2005.  A few days before the conferral of that degree on 16 December 2005, she was having difficulty controlling her asthma. She was worried that her breathing and asthma would prevent her from attending her graduation. As a result she made an appointment to see her general practitioner, Dr El-Masri.

18. The 15 minute appointment with Dr El-Masri took place on 13 December 2005 at the Southern Clinic (the consultation).  The consultation focused on Mrs Molloy’s acute asthma. After receiving advice about how to manage her asthma, whilst Dr El-Masri was writing, Mrs Molloy said she brought up the topic of menopause.  She thought it was a good opportunity to start “the conversation” about menopause with a female doctor of similar age to her and with whom she had a good rapport.

19. Mrs Molloy asked about menopause and told Dr El-Masri that her periods were changing.  A transcription of Dr El-Masri’s notes read:

    Cough and S.O.B. (shortness of Breath) puffer not working.

    O/E: chest clear, reduced air entry

    D. (Diagnosis) asthma

    Prednisolone 25mg reduce slowly… continue Seretide and Ventolin

    Long discussion about menopause. Having irregular bleeding now 48 year old and wearing panty- liner most of the time.

    If symptoms persist- gynaecologist”

20. Mrs Molloy continued to experience a light vaginal bleed or discharge following the consultation through to April 2006.  She described wearing panty liners and noticing at the end of the day evidence of bleeding as a constant part of her life.

21. Mrs Molloy alleged that as a result of Dr El-Masri’s negligence during the consultation, she did not know she was pregnant until 29 April 2006 when she was 33 weeks pregnant.  On 13 June 2006, Mrs Molloy gave birth to her son, James.  James has Trisomy 21 – Down syndrome.

22. Mrs and Mr Molloy commenced proceedings in the District Court in 2009 alleging that, as a result of Dr El-Masri’s negligence, Mrs Molloy lost the opportunity to undergo a therapeutic termination of her pregnancy.  It was alleged:

    -that Mrs Molloy consulted Dr El-Masri regarding asthma symptoms and vaginal bleeding over a number of months requiring her to wear a panty liner;

    -that at the time of the consultation Dr El-Masri was aware that Mrs Molloy was in a sexual relationship, had not taken contraceptive medication since January 2003 and that condoms were her preferred method of contraception;

    -that Dr El-Masri provided Mrs Molloy with information about menopause and advised her to make a further appointment in a few month’s time; and

    -that Dr El-Masri failed to exercise all due care and skill as a legally qualified medical practitioner in her examination, advice, treatment and supervision of Mrs Molloy and in particular failed to ask about her gynaecological and obstetric history, failed to undertake a pregnancy test, and failed to arrange a follow up appointment within a few days.

23. In her defence, Dr El-Masri pleaded that Mrs Molloy asked about menopause generally at the end of the consultation.  Following a discussion about menopause, she told Mrs Molloy that if her symptoms of irregular bleeding persisted, she should make an appointment to see her in about a month as she may need to be seen by a gynaecologist.  Dr El-Masri denied that she told Mrs Molloy to return in a few months.

24. Dr El-Masri denied that she was negligent and pleaded that she exercised due care and skill appropriate to her position as a legally qualified medical practitioner.  She pleaded that Mrs Molloy’s history was of irregular bleeding and not absence of bleeding or missed periods or spotting.  Further, she knew that Mrs Molloy used condoms as a contraceptive and had undergone a pap smear within the previous year.

    The judgment

25. Dr El-Masri was found by the Judge to have been negligent.  The finding of negligence is based on two significant findings.

26. The most significant finding made by the Judge involved a preference for Mrs Molloy’s evidence over Dr El-Masri’s evidence about what was said during the consultation:[66]

    I accept Mrs Molloy’s evidence as to the conversation with Dr El-Masri during the consultation. As I have said, I regard her as a careful and truthful witness. The consultation was personal to her. She was one of many patients for Dr El-Masri. Dr El‑Masri’s notes do not support Dr El-Masri’s version.

    [66]   Molloy v El Masri [2014] SADC 53, [83].

27. The Judge also preferred the evidence of the expert medical witnesses called by Mrs Molloy:[67]

    I prefer the evidence of Associate Professor McBride, and Dr Kaesehagen, as to the steps that should have been taken, given the symptoms described by the plaintiff. However even had I not done so, I find that on the basis of the expert evidence as a whole, in failing to obtain a history, which would have led to further investigation and examination, and diagnosis, either at that examination or at the follow up examination which Dr El‑Masri should have arranged, she did not act in a manner that was widely accepted as competent professional practice, and that she breached her duty to the plaintiff.

    [67]   Molloy v El Masri [2014] SADC 53, [280].

28. The Judge rejected Dr El-Masri’s evidence that she told Mrs Molloy to return in one month:[68]

    Her notes do not say that, and as I have said, I accept the plaintiff’s evidence as to the conversation. Even on Dr El-Masri’s own evidence, putting it at its highest, she said she told Mrs Molloy to return in one month, if the symptoms persisted, for referral to a gynaecologist.

    [68]   Molloy v El Masri [2014] SADC 53, [268].

29. Crucially, the Judge found that Dr El-Masri told Mrs Molloy to return to consult her in six months if her symptoms persisted:[69]

    I find that there was no basis for Dr El-Masri to make an assumption that Mrs Molloy was still having regular periods. I reject Dr El-Masri’s evidence that she told Mrs Molloy to return in one month if the symptoms persisted. Dr El-Masri had not turned her mind to the possibility that Mrs Molloy was pregnant. Mrs Molloy was not a patient “who was pregnant” although I allow for the possibility that Dr El-Masri intended to say in evidence that she had adopted such a usual practice for patients who were pregnant, or had gynaecological problems.

    In any event, I accept Mrs Molloy’s evidence that Dr El-Masri told her to return in six months.

    [69]   Molloy v El Masri [2014] SADC 53, [137]-[138].

30. The second finding concerned the nature and extent of Dr El-Masri’s duty. The Judge found that the advice to return in six months involved a breach of duty.  The Judge found that Dr El-Masri’s duty required her to investigate, examine and diagnose at the consultation.  If time did not permit investigation and examination at the consultation the Judge said it was incumbent on Dr El‑Masri “to arrange a follow up appointment within a short period of no more than one month, to enable the proper investigations to be carried out”.

31. The Judge also found that Dr El-Masri had a duty “to ensure that Mrs Molloy attended” a “follow up appointment”:[70]          

    I agree with the plaintiff’s submission that whatever construction may be placed upon the defendant’s advice to the plaintiff to make a further appointment, the defendant took no action to ensure that the plaintiff attended such an appointment, and no action to follow up on the patient’s non-attendance. There was no evidence led that the defendant had either a formal or informal mechanism in place to facilitate follow up appointments by patients.

    [70]   Molloy v El Masri [2014] SADC 53, [274].

32. The Judge concluded his reasons finding that, whilst he found Dr El-Masri did not advise Mrs Molloy to return in a month if symptoms persisted, even if she had given that advice she would still have been in breach of her duty to Mrs Molloy:[71]

    The defendant submitted, and I accept, that the evidence establishes that, had the plaintiff returned to see Dr El-Masri within a month, the pregnancy would have been discovered at that time, and that that was still within the time that a therapeutic termination of pregnancy could have been carried out. That highlights that it was incumbent upon Dr El‑Masri to arrange a follow up appointment within that period of one month, in order to carry out the additional testing. She did not do so. As I have said, I find that she did not advise the plaintiff to return in a month if the symptoms persisted, and I find that even had she done so that was not a sufficient discharge of her duty to the plaintiff.

    [71]   Molloy v El Masri [2014] SADC 53, [289].

    The appeal

33. Dr El-Masri appeals on three broad grounds.

34. First, the reasons given by the Judge were inadequate.

35. Second, the Judge failed to rule definitively on the s 41 of the Civil Liability Act 1936 (SA) (the CLA) defence.

36. Third, the Judge erred in not finding that Dr El-Masri exercised due care and skill appropriate to her position as a legally qualified medical practitioner during the consultation.

37. Dr El-Masri accepts that she owed Mrs Molloy a duty of care to exercise due care and skill appropriate to her position as a general practitioner when she was consulted by Mrs Molloy in December 2005.  

38. The issue for determination by the Judge was whether Dr El-Masri unacceptably departed from the standards expected of a general practitioner by reference to the particulars of negligence pleaded by the Molloys.

39. In considering this issue, Dr El-Masri’s conduct must be assessed according to the standard of a reasonably competent general practitioner pursuant to s 40 of the CLA.  The CLA also provides a statutory defence and specifically recognises the possibility of differing opinions amongst professionals.[72] 

    [72]   Civil Liability Act 1936 (SA) s 41(3).

40. Neither Mrs Molloy nor Dr El-Masri was aware that Mrs Molloy was 13 weeks pregnant at the time of the consultation.  Urinary pregnancy tests were available for use in the Southern Clinic in December 2005.

41. What took place between Mrs Molloy and Dr El-Masri during that 15 minute consultation is inevitability seen through the prism of hindsight.[73]

    [73]   Rosenberg v Percival (2001) 205 CLR 434, [16].

42. It is tempting, in the circumstances of the heartbreaking situation in which the Molloys found themselves, to find that a simple pregnancy test should have been performed on 13 December 2005.  If the pregnancy had been diagnosed, Mr and Mrs Molloy would have had the opportunity to consider whether or not to terminate the pregnancy, noting that therapeutic termination was available up to 15 February 2006 (conception plus 20 weeks).    

43. The risk of and lack of diagnosis of pregnancy in a 48 year old woman was the focus of attention during the trial.  What transpired during the consultation by necessity had to be the subject of specific detailed findings about when the topic of menopause was raised, who said what and in what context it was said.

    Inadequate reasons

44. Dr El-Masri complains that the Judge failed to give adequate reasons for his factual findings involving a preference for Mrs Molloy’s version of the facts.

45. Dr El-Masri contends that, in part, this followed because the Judge did not analyse the differences in the evidence, nor did he make any comprehensive finding about precisely what happened during the consultation.

46. Dr El-Masri complains that to the extent that the Judge made credit findings, these were general, unhelpful and affected by operative delay.[74] Judgment was reserved on 19 July 2011 following closing submissions.  Judgment was not delivered until 4 April 2014.

    [74]   Terry v Leventeris (2011) 109 SASR 358; Rail Commissioner (Formerly Transadelaide) & Anor v Warner (By Her Next Friend Airs) & Anor [2011] SASCFC 90.

47. The consultation occurred on 13 December 2005.  James Molloy was born in June 2006.  Proceedings were issued in 2009. The trial commenced on 3 May 2011.  It was heard over seven days.  

48. As there has been significant delay between the hearing of evidence and the judgment, and as the reasons do not give specific reasoning for accepting Mrs Molloy’s evidence or rejecting the evidence of the defence case, this Court must carefully scrutinise the conclusions reached by the Judge.[75]

    [75]   Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17.

49. The evidence indicates that Mrs Molloy raised the menopause topic at the end of the consultation. 

50. The Judge had to determine, having regard to the whole of the trial evidence, whether at the time of the consultation there was reason to single out the risk of pregnancy “from a number of adverse contingencies, or to attach to it the significance it later assumed”.[76]  

    [76]   Rosenberg v Percival (2001) 205 CLR 434, [16].

51. The Judge did not properly and fairly analyse both Mrs Molloy’s and Dr El‑Masri’s case.[77]  There has been no proper analysis of and explanation why the evidence presented in Dr El-Masri’s defence has been rejected.  There has also been no analysis of and explanation for the acceptance of Mrs Molloy’s evidence.

    [77]   Mitchell v Cullingral Pty Ltd [2012] NSWCA 389, [116].

52. The Judge failed to make findings of fact necessary to support the findings of breach of duty.  He failed to explain sufficiently how he resolved the conflict between Mrs Molloy’s evidence and Dr El-Masri’s evidence.  It was incumbent on the Judge to explain how he resolved the conflict, particularly in the circumstances of a three year delay between Mrs Molloy and Dr El-Masri giving evidence in May 2011 and delivery of judgment.

1. Associate Professor McBride gave evidence that Dr El-Masri should have excluded pregnancy at the consultation and arranged a more detailed consultation in a couple of weeks.  She said that if Mrs Molloy had advised Dr El-Masri that she had her last period in early December, then after enquiring about her last three periods, a review in two to three weeks when Mrs Molloy was feeling better from the asthma would be appropriate.  She said advice to return in a month would be appropriate if pregnancy had been excluded at the consultation.

2. Dr Kaesehagen said she would have performed a pregnancy test at the consultation.  Dr Kaesehagen said that her practice regarding follow up was to make diary notes and if she did not hear from the patient she would ring or have her receptionist ring the patient and if there was no response she would send a registered letter. Dr Kaesehagen was unable say whether this was common practice as she did not know what other general practitioners did.

3. Dr Joyner, Associate Professor Watts and Professor Michael regarded it as significant that Mrs Molloy did not present with a problem related to irregular vaginal bleeding and that it arose during the discussion that took place at the end of the consultation.

4. Associate Professor Watts said that it was appropriate practice to tell Mrs Molloy to make an appointment in a month, during which consultation a full gynaecological history, examination and investigations could be realistically and thoroughly performed.  Associate Professor Watts said in his report dated 19 November 2007 that Dr El-Masri’s management accorded with that of a competent and conscientious practitioner and that her notes were consistent with what he would expect a competent general practitioner to have documented.  He reported that Dr El-Masri had a long discussion with Mrs Molloy and:

   … most importantly offered further follow-up if her symptoms persist and referral to a gynaecologist. This I consider to be most appropriate and would be what a competent and conscientious general practitioner would do.

   In his second report, he confirmed that his views remained as set out in his report dated 19 November 2007.  In the notes of his conference with Dr El-Masri’s solicitors, he confirmed his opinion that advice to return in four weeks if the bleeding persisted was a reasonable response. 

5. In cross-examination Associate Professor Watts said he had great sympathy for Mrs Molloy but that he did not believe a urinary pregnancy test should have been done.   The bleeding should have been investigated at a later point, but it did not need to be done during the consultation.  He said that his own practice was to tell a patient to make an appointment within the month.  He disagreed that it would be appropriate for a doctor to follow up if a patient who mentioned irregular bleeding did not present after a month.  He said general practice is about a partnership between doctor and patient both of whom have responsibilities to try and sort out medical problems.  It was his evidence that it was appropriate to advise the patient to return within a month if symptoms persist.

   QNo, that’s not the question. The question is: is it appropriate to advise the patient to return if symptoms persist full stop.

   AYeah, I mean that’s what - you know, a sort of generic way of inviting a patient to come back and see you.

   QThat is to say, without putting any time limit on it.

   AWell, I would have said within a month and I think that’s what was said.

   QI am asking you to assume for the purposes of the question that the doctor simply said ‘Return if symptoms persist’ and the question was whether you regard that as inappropriate.

   AIn this situation there should have been a time limit on it, okay. In some other clinical situations you probably don’t need a time limit or ‘If symptoms get worse’ is something I would often say, ‘If you are not getting better, if the problem isn’t being sorted out, come back and talk to me’.

   QBecause does ‘persist’ have a special meaning in medical practice.

   ANo, it’s not a medical term.

   QIn this context, given a pregnant patient, pregnant women do bleed during the first trimester, do they not.

   ASometimes.

   QAnd sometimes longer than that.

   AYeah, sure.

   QAnd you would need, for that reason, if not many others, to put some time limit on it.

   ASure, yeah.

   QThere have been various times put before the court as to when a return should be arranged. On one account two or three days; on another, within a week. You’d agree that those two were appropriate, I think, would you.

   AWell, depends what you are following up. If you are following up the asthma, if things weren’t settling down. The bleeding, you know, two to three weeks, fine.

   QNot four weeks.

   AFour weeks, I mean if, you know, your presentation is all about retrospectivity, four weeks would have been fine.

   QThat’s given that you have elicited no signs or symptoms of the extent of the bleeding when it started, its volume and flow.

   A60% of women at peri-menopause have bleeding.

   QBut you don’t know whether she’s in the 60 or the 40, do you.

   ANo, well, of course not but you are basing your clinical decision on evidence, on the evidence from the literature.

   QTo say to a patient ‘Return in a couple of months’, would that be, in your view, inappropriate.

   AIt wouldn’t. You’d want to see them sooner than that.

   QTo say to a patient ‘Come back in six months’, I take it you’d regard as inappropriate.

   AFor this situation, sure.

6. In his reasons under the heading “Follow up appointment”, the Judge stated that Dr El-Masri’s duty extended to “the provision of reasonable steps to have the patient return for further appointments and examination or investigation”.  In support of this finding the Judge referred to Associate Professor Watts’ evidence regarding whether he would have organised a follow up appointment.  The passages of Associate Professor Watts’ evidence referred to by the Judge must be considered in the context of the entire cross-examination of Associate Professor Watts on this topic.  His evidence was not that a doctor must ensure follow up attendance.  The cross-examination on this topic was:

   QAnd you say the asthma consultation was all that the doctor should have done, apart from make some arrangement for the future.

   AYes, I believe so.

   QWould you have organised a follow-up appointment.

   AI probably would have. I probably wouldn’t have – I mean what do you mean by ‘organise’? Do you mean take the patient out to the desk and write in an appointment or – I probably wouldn’t have done that but I would have said, I would have impressed on her that I really needed to see her, you know, within the month so that we could sort out the problem.

   QWould you have handed a note to the patient saying ‘Make an appointment in a month or two weeks’ or whatever it may be.

   AThat would be my normal practice to do that.

   QTo do that.

   AYes.

   QAnd on the bare facts, that’s a note that the patient takes out to the desk.

   ANo, I would just tell the patient to do it.

   QTo make an appointment next week.

   AYes.

   QAnd what time frame, on the limited information you may have available to you.

   AThe time frame would be, you know, within a month, you know, depending on her needs. But two to three weeks maybe, yes, something like that.

   (Emphasis added)

7. Dr Joyner’s evidence was that asking a patient to come back in a month for a full focused investigation and examination was the correct way to manage Mrs Molloy’s report of irregular bleeding.  Dr Joyner said that much will depend on how a patient initiates the conversation about menopause, the doctor’s understanding of what the patient is saying and the context in which it is raised. He said a comment at the end of a consultation to the effect “can you tell me about the menopause” is a question that does not “automatically mandate further assessment at that time”:

   It depends on the context and this is, to my mind, the most - this is the critical aspect of the whole process; it depends upon how the question was raised, in the context it was raised, and the way it was raised. If the patient said ‘Look, I’ve also got another problem’ whatever that was then described it, certain aspects would then need to happen. But I understand this wasn’t the way it was expressed, it was a general question ‘Can you tell me about the menopause’ or ‘What are the signs of menopause?’, as an informative asking question, and then this led to the sequence which we’ve been described. It wasn’t ‘I have got a problem’.

8. In cross-examination, Dr Joyner agreed that irregular bleeding and the wearing of panty liners mentioned during such a conversation is a sign or symptom.  He said it is a sign or symptom that is “90%, 99% more typical of menopause than anything else and certainly in perimenopause”.  He referred to many patients asking about menopause and said that a doctor can give general information and allow for a focused consultation by offering a time to come back.  Dr Joyner was asked by Mrs Molloy’s counsel to assume that what was said to Mrs Molloy “was to return if symptoms persist, full stop, without a time” and whether he would regard that as proper advice.  His response was:

   AI think that is quite reasonable advice, based on the presentation ‘having irregular bleeding now, 48-year-old, wearing panty liner most of the time’. Most women would find that obviously a nuisance. If it has been raised, and if it has been raised at the end of this consultation, indicating that it was obviously a concern, but as it turned out it was not enough of a concern to come back within the reasonably near future.

   QTo simply tell a patient to return if symptoms persist would you need to elicit from the patient some idea of how long the bleeding had been extant.

   AAgain, it’s very easy to take this aspect as a separate aspect and to continue to say how far should you go, ‘cos any question focussed on eliciting more information is absolutely reasonable when you are doing it properly. And I come back to the fact that it’s very difficult to do that properly, whatever question you would put to me that could have been asked of this woman could well have an appropriate question like ‘Do you have bleeding after intercourse; do you have pain; is your abdomen any bigger’ whatever, all of which could have significant implications. But any single question, taken by itself, by definition excludes other questions and my point is that you either do the job properly or you can’t do it at all, in a sense, and this is a woman with undifferentiated irregular vaginal bleeding which could be due to 1,001 causes of which one is pregnancy but one is equally cancer, infection, a range of issues. And the only way to evaluate those things is not simply one focussed question but to say ‘If it doesn’t settle, come back and we’ll have a look’.

   QIf the answer was, for example, ‘I’ve been bleeding in this way for two or three months’ it would be a vastly different situation from ‘I started bleeding yesterday or the day before’ wouldn’t it, because in the former scenario you’d have to describe that as persistent bleeding.

   AAs I read this it says ‘Long discussion about menopause, having irregular bleeding, now 48 and wearing panty liner most of the time’, that does not indicate to me that the doctor’s understanding was that the bleeding had only been one or two days. [My] assessment of that, and it’s only my assessment, is that the woman had been wearing a panty liner for several weeks or longer or months even.

   QBut that’s an inference you draw, it’s not available on the notes, is it.

   ANo, that’s my inference and my assessment of what Dr El-Masri understood but you’d have to ask her, I can only have inference.

   QAnd it’s speculation on your part, isn’t it.

   AYes.

   QBut do you agree with me that if you had asked the question about the duration of the bleeding, you might have some idea, if it had been a couple of months, whether a referral to gynaecologist might be desirable there and then.

   AThe word ‘Most of the time’ is written down, which to me indicates a length of time not one or two days, and you would not normally refer a woman to a gynaecologist for bleeding only for a few days. The response of referring would really be more likely if someone said to me ‘Look I’ve actually been bleeding on and off for several weeks or months’ and then I would be thinking about a whole range of other choices that I gave you before.

   QBut you’d still need to ask the question, wouldn’t you, ‘How long have you been bleeding?’.

   AWell the only inference that I can draw about the doctor’s assessment of that is the written word ‘Wearing a panty liner most of the time, having irregular bleeding’. Now, I can’t do anything other than infer or speculate on what exchange there was between the patient and the doctor at that time, but the documentation in front of me would give me to understand that the bleeding had been going on for some time, weeks or months, such that the woman was having to wear a panty liner most of the time, etc.

9. Dr Joyner said that given the way the topic of irregular bleeding arose it was appropriate to defer assessment of it to another day. Further he said based on the information before him about the consultation he would have made the same comment as Dr El-Masri to the effect that “If things don’t settle, if they persist, come back; you never know, we may need to see a specialist”.

10. He said it would not be appropriate to tell a patient to come back in a couple of months and that he would be inclined to say “come back if things don’t settle”:

    QSo leaving the arrangement for the patient to return if symptoms persist without putting a time limit on it was acceptable as far as you’re concerned, is that —

    AYes, I think in the context of the way in which this was raised, the expressions used, if the bleeding had been going most of the time, one would then assume that the patient would come back if there was a problem, yes.

11. Dr Joyner said it was his opinion that Dr El-Masri’s management of the consultation on 13 December 2005 would be widely accepted as competent medical practice by members of the medical profession in 2005.

12. In his summary of Professor Michael’s evidence, the Judge stated that Professor Michael agreed that if a pregnancy test had been done it would have tested positive.  That was not the evidence.  Professor Michael said that had a pregnancy test been done at the consultation it is more likely than not it would have been positive.  He also said that false negatives occur in 10 per cent of urinary pregnancy tests performed. That is, in 10 per cent of pregnant woman the urinary test will return a negative result.  Professor Michael described Dr El‑Masri’s conduct of her examination in December 2005 as being in accord with widely accepted competent medical practice in Australia in 2005.  He said pregnancy was a very low possibility, a urinary pregnancy test was not required during the examination and advice to return in a month if bleeding persisted, at which time a history would be obtained, accorded with proper practice in 2005. 

13. Professor Michael was referred to Dr El-Masri’s notes, in particular Dr El‑Masri’s notes that Mrs Molloy return if symptoms persist.  The Judge stated that Professor Michael’s evidence was that telling a patient in the present circumstances to return if symptoms persist was insufficient.  This evidence was given in response to questions in cross-examination asking Professor Michael to assume that the advice to return if symptoms persist was the only advice given.  Professor Michael’s response was that advice would be inadequate with someone in Mrs Molloy’s age group with irregular bleeding. Professor Michael said on the basis of the scenario he was asked to assume that he would have preferred to examine her and repeat Mrs Molloy’s pap smear.  He was asked whether advice to return if symptoms persist would be inadequate:

    AIt doesn’t say ‘return’, if we are going to be about words. It says that she would refer her to a gynaecologist if the symptoms persisted.

    QI think you can assume for the questions that arrow means ‘return if symptoms persist’. On that assumption, if that was the only advice given about what should be done - and I will come to the gynaecologist in a minute – would you agree that would be inadequate advice.

    AIf that was all that transpired between them that may well be, but it doesn’t exclude the fact that Dr El-Masri said ‘Return to see me’.

    QI am asking you to assume that’s what she —

    AShe didn’t say that. She said ‘Refer to a gynaecologist’.

    QShe said ‘Return if symptoms persist’, and no more than that.

    AWith someone in this age group with irregular bleeding, I would prefer to examine her, repeat her smear. Yes, that would be somewhat inadequate.

14. He said advice to “return if symptoms persist” would be a problem for diagnosis if the bleeding had stopped and Mrs Molloy thought she had nothing to fear.  However, Professor Michael’s opinion was that the symptoms of pregnancy would have overridden the issue at that time and made Mrs Molloy suspect that she may be pregnant long before April when Mrs Molloy had a 33 week pregnancy.

15. Professor Michael said it was probably inappropriate to advise a 48 year old patient to return in about four weeks, or about a months’ time, if pregnancy was being considered. However, he confirmed his view that Mrs Molloy’s presentation did not suggest pregnancy and that the main thrust of the examination and investigation in four weeks’ time would be to exclude pelvic pathology.  He again reiterated his opinion that pregnancy was not part of the differential diagnosis when asked:

    QBut in that four weeks you might lose the opportunity to make a timely and accurate diagnosis of pregnancy.

    AYou would lose it, but it depends what you say is timely when we are already into the second trimester.

    QBut of course you don’t know that at the first consultation, do you, on 13 December.

    ANo, you don’t know that. She may have been very early in her pregnancy, in which case a timely pregnancy diagnosis would have been appropriate. Again I go back to my original belief that pregnancy was not part of the differential diagnosis given the symptoms and signs.

16. Professor Michael was asked in cross-examination “to assume the absence of any history with respect to the onset of the bleeding, its volume, the nature and extent of the changes to the periods the patient was complaining about, the presence of irregular bleeding in a patient now 48 years old and wearing a panty liner” and whether it was appropriate to not consider pregnancy as a possibility:

    AI would not consider pregnancy under those circumstances as an immediate possibility, but during the course of my investigation, yes, pregnancy would be excluded.

    QBut if you elicited that history in the initial consultation, that is to say, on 13 December —

    AWith irregular bleeding of moderate intensity, which is pain free, without any clear episode of amenorrhoea, no, I would not.

    QThe note at p.29 doesn’t refer to the bleeding as being moderate. It just refers to ‘irregular bleeding’. Do you see that.

    AYes, it does. She - Dr El-Masri has implied intensity by the use of the sanitary liner which is not usually required in very heavy bleeding, so she’s established that this is irregular light persistent bleeding.

    QIf what you say is correct, the doctor has implied that from the history the plaintiff gives about wearing a panty liner. Is that what you’re saying.

    AI’m saying that the doctor had a long discussion about menopause which seemed appropriate, that she was having irregular bleeding which required some sort of protection most of the time, so I would interpret that as being frequent, and that if these symptoms persists she intended referring her to a gynaecologist for further investigation.  Now, during the course of that investigation which would include a more detailed history and an examination, pregnancy and other pathology or other diagnoses would have been made and certainly pregnancy could have been excluded.

    QBut do you agree with me that the process of excluding pregnancy at least could have been implemented at that consultation on 13 December.

    AIf Dr El-Masri believed this could have been pregnancy, yes, it could have been excluded but she – and I would support that pregnancy would be low on my list.

1. Under the heading “Submissions and Findings”, the Judge discussed s 41 of the CLA. He stated that, although Dr El-Masri in her submissions was critical of Dr Kaesehagen’s knowledge of other general practitioners, he took Dr Kaesehagen’s view into account in assessing whether Dr El-Masri discharged her duty to Mrs Molloy.

2. The Judge did not make a determination regarding s 41, saying that while he accepted the opinion of Associate Professor McBride, “it may not be necessary to prefer one expert over another. I formed the view, on the basis of expert evidence as a whole, that it was incumbent upon the defendant to elicit a full history, to conduct a thorough examination, and to perform the necessary tests”.[105]

   [105] Molloy v El Masri [2014] SADC 53, [245].

3. The problem with this statement is that “the evidence as a whole” included the defence expert opinions that Dr El-Masri acted in a manner that was widely accepted amongst general practitioners.

4. In order to address s 41 of the CLA the Judge had to analyse and confront the nuances and differences between the expert evidence. However, before undertaking this scrutiny it was critical that the Judge make findings about the context in which the conversation about menopause and the topic of irregular bleeding arose. Having made those findings, the opinions of each of the medical experts needed to be considered in order that the Judge could determine whether or not Dr El-Masri acted in a manner that was widely accepted in Australia by general practitioners as competent professional practice in 2005.

   Conclusion

5. In scrutinising the Judge’s conclusions, I have arrived at the view that the reasons are not underpinned by a reasoning process linking and justifying the findings made.[106]  This has been compounded by operative delay.

   [106] AK v Western Australia (2008) 232 CLR 438, [85].

6. The Judge’s reasons do not explain how he came to the view that Mrs Molloy’s evidence was so reliable.  The fact that the Judge has not done so means that the reasons for judgment are inadequate. Added to this, the Judge has acted on evidence which is contrary to compelling inferences.

7. The Judge did not make a definitive finding regarding s 41 of the CLA and found Dr El-Masri negligent for failing to have a system of follow up. This ground of negligence was not pleaded and Dr El-Masri was not given fair notice of it.

8. The effect of the fact finding process errors I have referred to is that the finding of negligence must be set aside.

9. The Judge was impressed with Mrs Molloy and her witnesses.  This Court cannot be guided by the Judge’s findings as to credibility as he makes none with respect to Dr El-Masri and her witnesses.  The long delay between hearing the evidence and judgment delivery has occasioned the loss of the advantage a trial judge has in seeing and hearing the witnesses.

10. A trial judge in “determining issues of credit, enters upon a complex intellectual process involving the interaction of documentary material, elements of testimony from different witnesses and matters of emphasis none of which readily appear from reading a transcript”.[107]

    [107] Vagg v McPhee [2013] NSWCA 29, [85] as cited in Coote v Kelly [2013] NSWCA 357, [52].

11. It follows, regrettably, that I have concluded that the failure to assess the defence witnesses stymies this Court from drawing its own inferences of fact, determining the issues and the correct judgment.

12. Fairness dictates, in the wake of fact finding process errors and operative delay, despite the cost and further delay in finality, that there be a retrial.  This is the only way the unfairness which has caused the trial to miscarry can be overcome.

13. I would allow the appeal, set aside the finding of the District Court and remit the matter to the District Court for a retrial before a different Judge.