Ferguson v Mules

[2015] HCATrans 272

[2015] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B7 of 2015

B e t w e e n -

KAYLENE JOY FERGUSON

Applicant

and

NANCY LEANNE MULES

Respondent

Application for special leave to appeal

KIEFEL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 16 OCTOBER 2015, AT 10.01 AM

Copyright in the High Court of Australia

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friend, MR J.C. TREVINO, for the applicant.  (instructed by K&L Gates)

MR S.L. DOYLE, QC:   May it please the Court, I appear with my learned friends, MR R. LYNCH and MR A.S. KATSIKALIS.  (instructed by Shine Lawyers)

KIEFEL J:   Yes, Mr Kirk.

MR KIRK:   Thank you, your Honours.  In order to get to the special leave questions in this case it is necessary to spend a bit of time on the facts, so within my 20 minutes that is what I propose to do.  Your Honours would appreciate that the trial judge held that the applicant, Dr Ferguson, had breached her duty of care as a GP on 18 and 19 September 2008 in two ways:  first, by failing to physically examine the respondent’s neck, and secondly, by failing to inquire about the progress of particular symptoms, headache and flushing of the face.

The issue in dispute in the appeal was right on the cusp, in a sense, of breach and causation – it was ultimately a causation finding, but related to if she had fulfilled her duty in these two respects and done the examination of the neck and asked about the symptoms, would it have made any difference?  His Honour the trial judge held that it would not.  The majority in the Court of Appeal with perhaps slightly different reasoning took a contrary view and Justice Applegarth dissented.

Can I go first to the trial judge and start by putting it in context because the context here is critical, and if I could take your Honours to page 3 of the application book.  We are dealing here, as your Honours will see at paragraph [6], with cryptococcal meningitis, rarer than viral or bacterial meningitis, a bit more common in the tropical north but even there still very rare. 

If your Honours turn the page to page 4, paragraph [8], you will see that it is insidious, it is gradual, it is difficult to diagnose because often the symptoms only present late.  As to the symptoms, paragraph [9], there are six keys ones:  chronic headache; neck stiffness - which is critical here; and then also aversion to light – photophobia; nausea; vomiting and raised temperature. 

Now, can I note that my friends in writing seek to throw a bit of sand in the air by drawing some distinction between the latter four and first two.  In fact, it is made very clear later in the judgment – and I will take your Honours to this – that all six of them were regarded by his Honour the trial judge as classical symptoms of cryptococcal – that is to say fungal – meningitis.

To put this in a bit of context, the plaintiff, the respondent, certainly had neck pain.  That is why she went to see the doctor first on 12 September, and what the doctor diagnosed as a possibility – correctly as it turned out – was cervical spondylosis, in other words, degeneration of the vertebrae at the back of the neck.  So on 12 September, she sent the plaintiff off for a CT – sorry, on the 12th she did certain things.  On the 18th – I got that wrong – the plaintiff came back.  At that stage – apologies – the GP sent the plaintiff for a CT scan and said come back tomorrow and we will look at the CT scan.  The CT scan showed that there was indeed degeneration in the vertebrae. 

The key issue was she should also have asked – she should have examined the neck and she should have asked about the other symptoms which had manifested on the first appointment of 12 September, the headache and the flushed face.  But, to put this in context, if I could take your Honours to page 44, paragraph [213], at the bottom of the page your Honours will find a quote from Dr Turnbull, who was the plaintiff’s GP expert.  He captured the issue well, in our respectful submission:

“The role of the GP in this case was to recognise when the clinical features began to deviate from those of a persistent musculo‑skeletal condition and started to indicate a more sinister disease involving the central nervous system, requiring referral on –

Then at paragraph [214] in the quote, he said:

“If Dr Ferguson’s version is accepted –

There was a dispute of fact as to what occurred –

then I feel her management of the case on that day was in fact consistent with a reasonable standard of General Practice.  There were certainly no symptoms suggestive of a serious condition such as meningitis . . . The unfortunate outcome appears to be a result of the insidious and atypical nature of this form of meningitis, which at no time prior to her admission showed any of the classical signs and symptoms of meningitis.”

Now, this is the plaintiff’s GP expert.  To put that in context, to be fair, at paragraph [216] the trial judge said, I do not find this completely as the defendant said but substantially it was as the defendant said.  Then in the terms of the key reasoning of his Honour the trial judge, if your Honours go to page 48, paragraph [232] to begin with, in the last four lines his Honour refers to what I will call the first breach finding, namely there should have been a physical examination of the neck.  Part of the context was on 12 September the doctor had written down there was a reduced range of movement in the neck.  Paragraph [233]:

The real difficulty for the plaintiff’s case in this context is . . . it would have made no difference to her opinion.

Paragraph [234], Dr Vinen explains meningism, and that is then explained in that paragraph.  So that is common to all forms of meningitis, it becomes very painful to move the neck because meningitis is inflammation of the meninges which is the surrounding of the brain down into the base of the neck.  Paragraph [235], his Honour says:

It is significant that physical manipulation of the plaintiff’s neck by physiotherapist Mr Elsmore on 23 September was able to occur and apparently did not encounter an extraordinary reaction or a reaction so severe it caused that process to be abandoned.  That fact makes it unlikely that physical examination of the plaintiff’s neck four or five days earlier on 18 or 19 September would have provoked a response suggestive of meningism.

There is a reference then to Dr Cameron, who was the defendant’s neurologist, saying:

if a physiotherapist had been able to produce neck flexion –

and I will come to that evidence shortly –

the neck problem must not have been particularly troublesome.  While acknowledging the detail of exactly what physically occurred during the physiotherapist’s treatment was important he explained it would be an odd response for a patient to be able to tolerate neck flexion –

so that is pulling, or bending actually –

and neck traction –

which is pulling –

if the patient did have meningeal irritation.

Then [237]:

Dr Kable –

That was my client’s GP expert said that:

neck stiffness is a late sign in the course of meningitis –

I should note there is no dispute, she did actually have meningitis by 18 or 19 September, we are not disputing that.  The question is whether this particular sign of neck stiffness would have been apparent, and the evidence of Mr Elsmore, the physiotherapist, which I will come to momentarily, was critical because on 23 September he did some reasonably physical manoeuvres on her neck and did not record any neck stiffness.  Paragraph [239], his Honour said:

The plaintiff’s evidence referred repeatedly to her neck pain.

No doubt she had neck pain but that is distinct from neck stiffness, the neck pain was explained by the degeneration of the vertebrae:

Her only reference to stiffness of any kind was informing the physiotherapist that she was stiff and sore in the mornings.  No‑one gave evidence of observing her holding her neck stiffly or without movement -

and a reference to seeing a chiropractor on 17 September and a physiotherapist on 23 September.  Can I note that sentence, “No‑one gave evidence of observing her holding her neck stiffly” was criticised by Justice Boddice, not Justice McMurdo, as not taking account of the GP’s own recording on 12 September of a restricted range of movement.  With respect, that could not possibly be a fair reading of the judgment. 

If your Honours look back to [232] on the previous page, there is a reference to “the reduced range of movement”.  Indeed, that was discussed in paragraph [231] as well.  Read fairly, what his Honour was talking about was plainly no evidence of the kind of neck stiffness which is indicative of meninges.  Of further relevance, if your Honours turn to page 50, in relation to the other breaches, if I could summarise briefly, paragraph [244] in relation to facial flushing, which my client should have asked about, last sentence:

It was therefore not a symptom reasonably likely to arouse concern –

It is not one of the six classical symptoms of meningitis, and as for headache, which my client should have asked about, last two lines at page 50, it was an intermittent headache, it is not suggestive of anything inconsistent with the established and proper diagnosis of the musculoskeletal cause. 

If I can take your Honours to how the trial judge dealt with Mr Elsmore’s evidence, the physio, going to page 31 of the application book, his Honour went through the evidence essentially chronologically.  At the bottom of page 31, last sentence, he says Mr Elsmore:

applied traction, passive flexion and acupuncture to the cervical spine and recommended the plaintiff wear a cervical traction collar.

Then over the page, page 32, paragraph [155], if I could invite your Honours to read that paragraph.  So there is no adverse response noted.  The physio did not recall this in any detail – he remembered a distressed woman – but he had good notes and he would have taken a note if there was any adverse response.  Now, as to what he did in the manipulation, that is quoted by Justice McMurdo at page 84.

KIEFEL J:   Well, the short point is that even if the doctor had done what it is said should have been done, that nothing would have been found to indicate the existence of the disease.

MR KIRK:   That is right, yes.

KIEFEL J:   So I hope you have given yourself sufficient time to be able to identify what it is that the Court of Appeal did wrong in terms both of, on your submissions, not respecting the findings of fact below, but more importantly to identify for us a principle in relation to causation.

MR KIRK:   Yes.

KIEFEL J:   Do you say that the Court of Appeal simply did not apply the requirement of causation?  Is that essentially it?

MR KIRK:   There are two core points, in a sense.  One, they did not, with respect, properly recognise one of the natural advantages of the trial judge, namely observation of what the physio demonstrated, and I will show that to your Honour in half a second.  The second relates to the point your Honour just put to me, that in essence what they did is they jumped from a possibility that she may have found neck stiffness and that may have led down to a path which would have led to diagnosis and treatment, but without getting to probability, and that of course, as this Court reaffirmed in Tabet v Gett is critical. 

Our key point there is that they do not properly build the logical steps necessary to get from possibility to probability and, indeed, that leads back in a sense to the evidence of the physiotherapist.  So looking at what the physiotherapist said quoted in paragraph [13] bottom of page 84:

“We tried –

That is the royal “we”, meaning he –

traction with passive flexion –

So that is one manoeuvre –

patient lies on her back and we provide a traction force to the neck –

So traction is pulling, flexion is bending.  He went on to explain:

The base of their occiput –

that is the back of the head –

sits on your forearm, your fingers under their chin –

So it is the hand coming under the back and fingers under the chin –

and you apply traction force when they’re just lying there.  The counter force is just their body weight, and just apply a gentle force to it.  You do a test of about five seconds and then you let it go, make sure there’s no massive increase in symptoms which would indicate a pinched nerve.  Let it go then repeat again. 

On the repeat you:

hold it for 30 seconds at a time and probably do three lots of that and see how you go.

Your Honours will see that he is demonstrating this, third line:

you roll your forearm back this way and you apply traction force –

Then in paragraph [14] her Honour quotes, end of the second line:

He explained “passive flexion is just when you – when you roll your forearm back like this with your fingers under [the] chin then the head will fall into passive flexion”.

So again he is demonstrating it.  Neither Justice McMurdo nor Justice Boddice recognised that there was a demonstration tied up in here which was critical to what was actually going on, the movement of the head, how much it came back down onto the chin.

KIEFEL J:   Surely they were told that by counsel.

MR KIRK:   Well, no doubt they were but there is no acknowledgement of the fact that there is a demonstration going on here and that one of the natural advantages, to use the Fox v Percy language, of a trial judge is to see the demonstration.  What her Honour found at paragraph ‑ ‑ ‑

KIEFEL J:   But are you saying, Mr Kirk, that you cannot – that they could not discern this from the description given which is a fairly full description of what ‑ ‑ ‑

MR KIRK:   It is not that their Honours could not or did not discern and, indeed, Justice Applegarth made it clear, but they did not give due allowance for it having occurred, and that emerges in paragraph [14], last four lines, her Honour said:

It is clear that his description of the “traction and passive flexion” which he applied was not the chin on chest neck examination likely to disclose the type of neck stiffness which is a common symptom –

et cetera.  In our respectful submission, that inference is not one fairly open, given the ambiguity of the demonstration – we do not know quite what went on – but her Honour is drawing an inference, which is a possibility, we accept, but far from the obvious one and without making allowance for his Honour having seen it occur. 

To put that in a bit more factual context, in paragraph [16], her Honour quotes Dr Whitby, who was our infectious diseases expert, who explains “it’s painful to move the neck” almost any which way, if I can paraphrase, because there is inflammation of the whole covering of the brain down into the base of the neck.  Then paragraph [17], further, third line:

And so that pain and resistance to movement is going to be there no matter how you test it.  If you ask the patient to actively put their chin on their chest, they can’t do that, and that’s the common sign that’s used.

If your Honours turn the page to paragraph [19], second line:

The physiotherapist’s evidence was not that Ms Mules had reasonable neck movement –

He had noted she was protecting of movement but she did have neck pain, no doubt about that:

And nor did the physiotherapist give evidence of Ms Mules’ head being moved forward chin to chest –

Well, again, we would respectfully submit, that is not apparent from the demonstration.  If your Honours then go to paragraph [22], the culmination of her Honour’s reasoning, her Honour says, first sentence:

In my view, a thorough review of the evidence . . . does not support the conclusion that had Dr Ferguson examined Ms Mules’ neck . . . she would not have detected neck stiffness –

So that is a double negative and then the next sentence, there is a leap to a positive:

Rather, for the reasons detailed by Bodice J, particularly as it is now uncontentious that she had cryptococcal meningitis at this time, such an examination was likely to have revealed an inability to place her chin on her chest.

So that is a large logical leap where, further, there were none of the other classical signs of meningitis, apart from headache, disputed neck stiffness, no nausea, no vomiting, no raised temperature, no photophobia.  To turn to Justice Boddice, very briefly, at page 119, paragraph [176], if I could invite your Honours to read that.  Now, again his Honour is drawing an inference about what occurred in the demonstration, by no means necessarily apparent from the description of it in the transcript.  To say it was a gentle pause of only about five seconds is not, with respect, a fair summation of the series of procedures done.  Then over the page, page 120, paragraph [179]:

Had the respondent performed the physical examination in accordance with her duty of care, it would have included testing for chin on chest movement.

Now, that is not quite what the trial judge found, by the way.  It was just a neck examination.  Then his Honour jumps to:

It is likely it would have revealed significant neck restriction.  The appellant had cryptococcal meningitis by this stage.  The procedure . . . produced the observation the neck was not moving very much at all.  That was significant –

Again, his Honour, first, is making assumptions about what was revealed by the demonstration; secondly, is not taking account properly, or indeed at all, we would say, of the absence of the other classical symptoms; and, thirdly, he is bringing in a hindsight analysis. 

Now, we accept, of course, causation can take account of all the facts, including what is known later but his Honour the trial judge caught the point well, in our respectful submission, at page 55, paragraph [268] - hindsight bias, in a case where you have a set of symptoms, properly diagnosed as being a manifestation of one cause and then one says, but she also had this other disease, therefore, it must have been apparent.  That is to bring in, in our respectful submission, hindsight bias.  As to the demonstration, his Honour Justice Applegarth at page 93, paragraph [46], correctly, with respect, indicated:

the appeal record does not allow a view to be taken about what his demonstration of passive flexion showed.

That, in our respectful view, is correct.  So at least there are three special leave points which are interlinked and overlapping.  First, this Court in Fox v Percy recognised whilst an appeal on rehearing must engage a real rehearing you have to take account of the natural advantages of the trial judge and spoke there about credibility and implicitly about demeanour, not about demonstrations and demonstrations is also one of the natural advantages of the trial judge having seen it done in court, in our respectful submission.

Secondly, there is this hindsight issue, remembering we are on the cusp of breach and causation that, well, because she did actually have the disease at the time, we know that, we assume it was all manifest which fails to take account of the absence of the other classical symptoms.  It is as though breach was enough and it is not enough and thirdly, implicit in that is a lowering of the threshold and it is this, what I call the logical leap from the possibility that examination would have shown it to a probability and there was just not enough evidence to get to probability, that had my client examined the neck, asked about her headache and the flushing, it would have led down a different path.

We recognise it is a very factual case but in the common law method, it is actually through facts and cases like this that principle, including as to causation as to appeal procedure, is best exposed and examined.  May it please the Court.

KIEFEL J:   Yes, Mr Doyle.

MR DOYLE:   Your Honours, none of these points raises a special leave point.  The first one which is the contention that there is a need to identify further the scope of the Court of Appeal’s role in reviewing findings below is no new point of principle.  It is a well‑established principle and ultimately it turns on the facts of this case.  As I will show you in a moment, the demonstration is of minor significance to the determination of this case.  The other two issues which were identified really are just questions of determination on the facts as to causation. 

Can we start by reminding your Honours that the trial judge found, and it was not disputed, that there was a breach by the doctor, that is, that he found, given the presentation of the respondent, the doctor should have conducted a physical examination of the full movement of her neck.  She should also have made some further inquiries about the persistence of headaches and the association of the facial flushing with headaches.  The principal one though, of course, is the breach in not having conducted any physical examination of the capacity of this woman to move her neck.

Can we ask you to take up the application book at page 4 to note again paragraph [9].  I will come back to this in a moment, but there the trial judge found that:

The classical symptoms of cryptococcal meningitis are chronic headache and meningism, which is typically indicated by neck stiffness, with the patient unable to flex the neck forward so that the chin touches the chest.

That is the kind of absence of range of movement that is relevant to the determination of the risk of the existence of cryptococcal meningitis.  Our learned friends have taken you to other parts of the reasons which probably make it unnecessary for me to do much of that.  Can we ask you, though, to go to page 49 to paragraph [239] to what is essentially the core of the determination on lack of causation:

The plaintiff’s evidence referred repeatedly to her neck pain.  Her only reference to stiffness of any kind was informing the physiotherapist that she was stiff and sore in the mornings.  No‑one gave evidence of observing her holding her neck stiffly or without movement.  Her neck was manipulated without reported resistance by a chiropractor on 17 September and a physiotherapist on 23 September.

Then there is the finding of lack of causation.  That really contains two plain errors which were identified by the Court of Appeal.  One is the suggestion that no one gave evidence of observing her holding neck stiffly or without movement - it was plainly wrong as I will show you in a moment – and, secondly, the contention that you could draw some conclusion from the form of manipulation which was conducted by the chiropractor and the physiotherapist as to the absence of meningism, which of course is tested by the chin to chest movement.

As to the first aspect of that, can we ask your Honours to turn, in the trial judge’s reasons, to paragraphs [109] and [110] at pages 22 and 23 where the applicant’s own notes, recorded when her patient came on the second occasion – “reduced ROM”, which is reduced range of movement, and at the end of paragraph [109] you will see that his Honour records:

The defendant acknowledged the plaintiff’s posture and movement suggested her neck and head had less freedom and some reduced range of movement.

If I can ask you to read the first sentence of the next paragraph.  As to the observations made by the chiropractor, these are conveniently summarised in the reasons of the President.  Can we ask you to turn to page 84 of the record and then can we ask you to read paragraphs [11] and [12] and as to the evidence of the physiotherapist, our friends have taken you to paragraphs [13] and [14] but can we just go through them again.

Bearing in mind that his Honour said no one gave evidence of her being protective of movement and so on, the fact that the physiotherapist’s evidence was, which the President rightly identified required careful attention:

that she was distressed . . . had no particular recollection of the consultation.  She gave him a history of increasing pain . . .  which was better when she lay flat on her back.  She was “protecting of movement” and “just wasn’t moving her neck very much at all”.

Justice Boddice summarises that evidence to like effect at paragraph [119] and what really becomes critical is whether the nature of the test which the physiotherapist subjected the respondent to was one which would have tested for meningism, which is the chin to chest test.

That is ultimately what this application seeks to hang its hat on.  It is not said by any witness that is the nature of the test conducted by the physiotherapist.  He was called as a witness.  It was not put to him that was the nature of the test and he did not say it was.  The evidence that he gave, which is summarised by the President, to which our friend took you, is of a traction force which is the antithesis of the chin to chest test.

Her refers to flexion but as the President rightly points out in paragraph [14] of her reasons, he goes on to explain what that means and it is not to simulate the chin to chest test at all.  There was evidence below that any kind of movement would be difficult for a person suffering from cryptococcal meningitis to deal with.  The President rightly deals with that in paragraphs [16] and [17] of her reasons.  Can we ask your Honours to go to that?

KIEFEL J:   I am sorry, what was that reference?

MR DOYLE:   Paragraphs [16] and [17] of the President’s reasons.  Our friend took you to part of it.  It is the evidence of Dr Whitby.  It is really directed to this proposition that any kind of manipulation, if she had cryptococcal meningitis, would have been impossible, essentially, would have shown a reaction and that is what Dr Whitby starts to say in the first passage at [16] but it is premised upon the physiotherapist feeling there was reasonable movement and we have just taken you to it.  The physiotherapist in fact gave evidence of the respondent being protective of movement and not being able to move her neck very much at all.  But then it is clarified, what Dr Whitby meant, in paragraph [17], which we will ask your Honours to read but you will see that what he is talking about is incapacity to perform the chin to chest test:

If you ask the patient to actively put their chin on their chest, they can’t do that . . . Alternatively, you can just try and actively move the neck forward.  They can’t do that either.

That is the evidence which is given, that a person who is suffering from cryptococcal meningitis will not be able to do that range of movement, the chin to chest and, your Honours, there is no evidence that the physiotherapist did that.  The trial judge does not find that he did that.  In fact, when one goes to his Honour’s reasons, what he describes the physiotherapist doing is applying a traction force and that is in paragraph [155] of the trial judge’s reasons at page 32 of the book:

He did not recall the plaintiff responding unusually when he physically manipulated her, applying traction force to her neck.

So that in terms of this first question that is raised by our learned friends, the oral evidence which is a full description by the physiotherapist, to which our friends have taken you, of what he did, was considered by all the court.  It is consistent with the finding of the trial judge that what the physiotherapist did was apply a traction force.  That is the only description relevantly given in the passage I have just taken you to.  A traction force is not of the kind which would simulate the chin to chest test and I will come back to the significance of that again in a moment. 

So that the perceived advantage of the trial judge which it is said the Court of Appeal fell into error in not recognising, is one that the trial judge did not identify.  He did not say, having seen this demonstration, I know that what this patient was subjected to by the physiotherapist was a simulation of the full range of movement test, the chin to chest test.  In fact, quite the antithesis - he describes it as being a traction force where the patient was resistant to it in some way.

As I have said to you a moment ago, if it was that important, one would have thought that evidence would have been led from the physiotherapist that the kind of movement he would have done was to simulate the chin to chest movement. 

So it is described as a demonstration but in the course of giving the evidence the physiotherapist said, I put my arm here and my chin there, and I suppose it is possible that you could not understand the evidence without having that described to you but the trial judge was able to do it.  He did not say that the demonstration informed in any way advantageous to the applicant’s case, the evidence with the physiotherapist gave and the Court of Appeal rightly acted upon, really, what the trial judge described as the nature of the conduct engaged in by the physiotherapist.

So, in our submission, there is really no point of principle here.  There really is in fact no disrespecting by the Court of Appeal of the trial judge’s advantage.  There is no such advantage which helps our learned friends anywhere in the reasons of the trial judge and the Court of Appeal has rightly made findings of fact which are consequent upon the primary facts found by the trial judge, rather than departing from any advantage in making those primary findings of fact.

Can I move then from that first special leave point which was raised to the causation point and I suspect this really raises both of those, the second and third points our learned friend suggested at the end.  Ultimately, this is a question of fact.  It cannot be, and the Court of Appeal does not say that they are making a finding about the possibility of causation.  They make the finding about the fact of causation and it was, in our submission, properly open to them on the evidence.

Can I remind your Honours of these facts, all of which seem to be found and uncontroversial.  The respondent in fact had contracted cryptococcal meningitis.  She was admitted to hospital seriously ill on 25 September and diagnosed and treatment started on the 26th.  The trial judge, in a passage to which our friends took you, recorded the symptoms of cryptococcal meningitis as developing over a period of at least two to four weeks.  That is in paragraph [8] of the trial judge reasons.

So that when my client saw the applicant on 18 and 19 September, her symptoms were, on any view of that period of development, under development, that is, they were in the course of being developed.  She was a week away from the final diagnosis of cryptococcal meningitis.  Indeed, on one view, she was in the latter stages of the development of that disease. 

The disease, cryptococcal meningitis, has as the trial judge determined it, two classic symptoms:  chronic headache and meningism typically indicated by neck stiffness with the patient unable to move her head and the chin to chest.  There are other symptoms to which our friends took you, which may be controversial if this appeal is to proceed. 

The respondent in fact presented to the applicant with indications of those two classic symptoms, neck stiffness and persistent headaches, and consistently with the progression of that disease, the trial judge found in the passage we took you to in paragraph [110], that her condition had in fact deteriorated since 12 September.

Now, it is not the respondent’s case that the applicant should have diagnosed cryptococcal meningitis but that there were sufficient presentations of the classic symptoms of that disease to require the applicant to undertake further inquiry of her and the trial judge found that, that there was sufficient indications of something to require the performance of a physical examination of the full range of movement of her neck and the learned trial judge summarises his findings in that respect at paragraph [208] and I need not take your Honours to that.

The evidence also established that if a physical examination of that kind had been conducted by a GP, that is a full range of movement examination, a patient suffering from cryptococcal meningitis would not be able to do it - and I have taken your Honours to the passage of the evidence of Dr Whitby that says that and that is adverted to both by the President and by Justice Boddice. 

Now, that collection of facts, all of which is uncontroversial in our submission, is plainly sufficient to establish the causation on the balance of probabilities, given the known outcome that at the time - which our learned friends readily accept now - that at 18 and 19 September the respondent in fact had cryptococcal meningitis, given that and given the evidence which we have taken you to of the presenting with the classic symptoms, the deterioration of those symptoms and the evidence that had there been the correct test the person with meningism could not resist it.

KIEFEL J:   What was the basis of Justice Applegarth’s dissent?

MR DOYLE:   Essentially that there should not have been a departure from the conclusion that the physiotherapist was able to manipulate with ‑ ‑ ‑

KIEFEL J:   I see and you say that is a misunderstanding of what was involved in the testing.

MR DOYLE:   Quite so, and the other aspect I suppose I should mention, was that Justice Applegarth said of paragraph [239] of the trial judge’s reasons, where he said that:

No‑one gave evidence of observing her holding her neck stiffly or without movement -

that is to be understood as being stiffly or without movement indicative of or indicating cryptococcal meningitis and that is what his Honour says the trial judge ought to have been understood as saying.  In a sense, that is irrelevant.  She was exhibiting a classic symptom of cryptococcal meningitis because she was exhibiting neck stiffness.  There may well be other things which cause neck stiffness but that does not mean one should not carry out the range of movement test which the trial judge said it was a breach of this doctor not to have done. 

But as in terms of the duty of care owed there was sufficient presentation of something that required further exploration by physical examination and further inquiry and that something, we know, is a classic symptom of cryptococcal meningitis and, had the full range of movement test been conducted, on the balance of probabilities, it would have revealed a patient who was incapable of resisting that movement, indicative of meningitis, and referred to someone who could diagnose it.

Your Honours, the only other aspect of this factual controversy which we should mention is that both in writing and I think our learned friend on his feet made a submission that neck stiffness is a symptom which the evidence suggested developed late and there was some evidence to that effect.  It is not accepted by the trial judge.  The trial judge records it.  It was controversial and that controversy is recorded by the Court of Appeal in their discussion of that evidence.

So, it was open to them, in our submission, to conclude that it was not a symptom which only developed late but even if it were, on the time scale of the development of this disease which is identified by the trial judge, on 19 September this was late in the development of a disease which - the symptoms of which develop over at least two to four weeks, so that all of the objective facts as known correspond with we know to be the ultimate outcome of someone who has this progressive illness late in its development of symptoms which, had there been the proper range of movement test conducted by a doctor, someone who knows what they are doing, relevantly, on the balance of probabilities would have led to a referral to a specialist or someone who would have diagnosed it in time, all of which are questions of fact and none of which, in our submission, are either shown to be wrong or sufficiently to warrant a grant of special leave.  May it please the Court.

KIEFEL J:   Anything in reply, Mr Kirk.

MR KIRK:   Just briefly, your Honours.  My learned friend said in the beginning of his submissions that the Fox limits are well understood and this case just turns on the facts.  As I put earlier, it is facts which best illustrate the nature of one of those limits, as I have sought to articulate.  It is significant, in our respectful submission, that my friend said Justice Applegarth misunderstood, in effect, the demonstration.  Well, that just reveals the importance of understanding what exactly occurred in the demonstration.  My friend said that critical was the nature of the test done by the physio.  We entirely agree, with respect.

He reminded your Honours of what Dr Whitby had said.  Could I just draw your Honours just briefly to one other piece of evidence at page 86 in relation to the significance of what the physio had done – so page 86, paragraph [20] of Justice McMurdo’s judgment.  There is a quote from Dr Cameron, who was my client’s expert neurologist.  If your Honours look about seven lines down:

It’s just an odd finding to me.  If the patient can tolerate neck flexion and also neck traction with meningial irritation - it’s an odd response . . . I don’t know how she would’ve, but it would tend to make one think more of a cervical spondylosis at the time as the cause of pain, which it obviously wasn’t.  If a physiotherapist could produce neck flexion it mustn’t have been – her neck problem must not have been particularly troublesome at that time.

To be fair, paragraph [21], next sentence:

In further cross‑examination Dr Cameron agreed with Ms Mules’ counsel that it was difficult to comment without knowing exactly what physiotherapy was performed -

which, in our respectful submission, illustrates the importance of understanding exactly what went on.  In relation to the suggestion that the trial judge was wrong to say there was no evidence of neck stiffness, my friend relied on the applicant’s own notes.  I have already addressed that and Justice McMurdo disagreed with Justice Boddice in not reaching the view that his Honour the trial judge had misunderstood that, had forgotten that the GP had recorded restricted range of movement on 12 September, so there was a division in the Court of Appeal in relation to that.

In relation to the symptoms, my friend said, well, there are two classical symptoms.  If I can take your Honours briefly to page 54 of the

application book, paragraph [263].  That was plainly the view held by his Honour the trial judge:

This falls considerably short of the chronic headache, neck stiffness, nausea and vomiting, aversion to light and raised temperature which are the classical symptoms of cryptococcal meningitis.

My learned friends relied, as did the majority, on the known outcome but, in our respectful submission, it does not sufficiently recognise that causation and breach are closely interlinked here.  There were two more things my client should have done and yes, we know that she had meningitis but she also had the degenerative neck condition and, as Dr Turnbull said, the plaintiff’s expert, you needed something properly to send her down another course, to show it was something more sinister and it is very easy in retrospect to say, well, of course, she should have gone down the other course but that does not fairly recognise the position that my client was in.  If it please the Court.

KIEFEL J:   We consider that this matter involves no question of principle.  Special leave is refused with costs.

AT 10.43 AM THE MATTER WAS CONCLUDED