Flinders Medical Centre v Waller - [2005] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
FLINDERS MEDICAL CENTRE AND ANOR v WALLER AND ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
20 April 2005
NEGLIGENCE
Appeal by a specialist neurologist and the hospital which employed him against a finding of negligence against the neurologist following a trial in the District Court - the Trial Judge found that he had breached his duty of care to the first respondent whom he had misdiagnosed as suffering from multiple sclerosis - proper investigations at an early stage would have revealed an epidermoid cyst which could then have been removed by surgery, thereby avoiding more serious complications in her condition, which eventually had rendered her paraplegic - held that the Trial Judge was not shown to have erred in reaching the finding of negligence - observations as to adequacy of reasons where one body of expert evidence is preferred over another - appeal dismissed.

DAMAGES
The first respondent suffered from paraplegia and other sequelae following negligent treatment by the second appellant, a specialist neurologist - the Trial Judge in the District Court rejected the argument that she should be awarded damages only for loss of a chance of improvement and held that, more than likely, if properly treated she would have avoided paraplegia and other serious conditions which developed - Trial Judge's finding upheld on appeal - however on the first respondent's cross-appeal, damages of $50,000 awarded for future loss of earning capacity increased to $100,000.
Rowland v Police (2001) 79 SASR 569; Rogers v Whittaker (1992) 174 CLR 479, considered.

FLINDERS MEDICAL CENTRE AND ANOR v WALLER AND ANOR
[2005] SASC 155
Full Court: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: I have had the advantage of considering the reasons prepared by Perry J. I agree with his reasons for holding that the defendants’ appeal against the finding of negligence by the second defendant should be dismissed.
The issue of whether the second defendant was negligent is a difficult one. The case was a long one, involving much expert evidence.
On a number of matters, relevant to the ultimate issue of negligence, judgments involving an exercise of professional skill had to be made by Professor Burns when treating Mrs Waller. Likewise, when giving evidence about that treatment, the expert witnesses were called upon to express an opinion involving the exercise of professional judgment. There was expert evidence supporting each side on the key issues.
The trial Judge reviewed the evidence thoroughly and carefully. In the course of the appeal we were referred to a good deal of the evidence. Counsel assisted us with detailed submissions, supported by extensive references to the evidence. Since the hearing of the appeal I have re-read parts of that evidence.
The issue for the Court is whether the trial Judge’s conclusion is wrong. It is not for us to decide the case afresh. Like Perry J, I am not persuaded that the trial Judge’s conclusion is wrong.
There is adequate evidence to support the Judge’s conclusion that between 1979 and 1981 there was sufficient uncertainty about the cause of Mrs Waller’s symptoms to call for further investigations as a matter of proper neurological practice. There is also sufficient evidence to support the conclusion that had those investigations been carried out the presence of a cyst would have been disclosed, that the cyst could, and would, have been removed, and that Mrs Waller’s condition thereafter would have been about the same as it was during her period of remission between 1982 and 1986. This finding by the Judge is underpinned by a finding that he made, by implication, that a diagnosis of multiple sclerosis should not have been made unless the evidence supporting that diagnosis was unequivocal. There was adequate expert evidence to support that approach. The failure to carry out the relevant investigations was a departure from the standard of care to be expected from a reasonably competent neurologist.
It follows that I agree also with the conclusion by Perry J that no error has been demonstrated in the Judge’s approach to the assessment of damages. Damages were properly assessed on the basis that, on the balance of probabilities, the cyst would have been detected and removed, and that Mrs Waller’s disabilities thereafter would have been as found by the Judge. This is not a case in which damages should have been assessed on the basis that Mrs Waller’s only loss is the loss of a chance that detection and removal of the cyst might have improved Mrs Waller’s condition. The central findings in this respect are found in the trial Judge’s reasons at [71].
I turn to the question of damages.
The Judge summarised his award of damages to Mrs Waller, at [147]:
Future accommodation  $        60,000
Future home care  800,000
Future transport and mobility  120,000
Future medical and like services and special equipment  620,000
Past special damages  10,000
Past gratuitous services  900,000
Future gratuitous services  12,000
Future economic loss  50,000
Past non-economic loss  140,000
Future non-economic loss  80,000
Pre-judgment interest  410,000
Total  $     3,202,000
On appeal, the defendants challenge as excessive the amounts awarded for future home care, future medical and like services and special equipment and for past gratuitous services.
By cross-appeal Mrs Waller challenges as inadequate the amount awarded for future economic loss. That is, for loss of earning capacity. She complains of the failure to award damages for loss attributable to loss of earning capacity prior to the award of damages, and she complains that the amount awarded in respect of loss in the future is inadequate.
By and large the challenges to the award of damages were directed to the trial Judge’s quantification of the allowance under the relevant head. Subject to one or two matters, there were no challenges to the findings of fact on the basis of which damages were quantified. There were no challenges, as I understood the submissions, on any question of law or of principle.
It is appropriate to emphasise that the ultimate question for this Court is whether the award as a whole is excessive or inadequate. The parties confined their submissions to particular heads of damages. It is convenient to take the same approach. But, at the end of the day, the Court must stand back and consider whether the overall award is excessive or inadequate. For those purposes, and having regard to the manner in which the parties put their submissions, it is appropriate to proceed on the basis that the award of damages made under the other heads were, taken individually, within an appropriate range, being neither excessive nor inadequate.
To provide a background to the submissions on damages, it is convenient to outline the Judge’s findings as to Mrs Waller’s condition and prospects. For the purposes of the appeal it is not necessary to deal with Mrs Waller’s condition in detail. I say this so that it will not be thought that I have ignored or overlooked the disabilities with which Mrs Waller must cope, the suffering that she must have experienced, and will experience, and the distress that her condition must cause to her. The evidence before the Judge indicates that she is a courageous and resourceful woman, coping with a burden that would have crushed many people.
Perhaps the key finding is that made by the trial Judge at [75]:
As a result of the defendants’ breach of duty in 1979 the plaintiff has suffered substantial paraplegia from early 1980 to about 1982, progressive paraplegia from about 1986 to June 1988 and complete and permanent paraplegia since June 1988. In association with the paraplegia she has no feeling in her body below her breast line. Accordingly, she experiences no physical pain in her lower body. Since June 1988 she has been completely incontinent in her bladder and bowels.
Mrs Waller is confined to a wheelchair. She tires easily. She is particularly sensitive to extremes of heat and cold. In about November 2003 Mrs Waller developed four quite serious pressure sores, attributable to continued confinement to bed and to the wheelchair. These have required, and will require, substantial treatment. Not surprisingly, Mrs Waller’s condition has caused her considerable distress. The Judge said at [79]:
Since early 1980 the plaintiff has suffered considerable emotional and mental trauma and stress through the mis-diagnosis of MS and the consequences of becoming permanently paraplegic. However, she has put on a brave front and has only allowed those very close to her to see her considerable distress and anguish. Soon after she was diagnosed with MS she was told by a local doctor that she would be fortunate to reach 40 years of age. After early 1980 this continued to distress her as she feared she would not be available to care for her children. She became very distraught in early 1998 where after what she thought were arrangements for an operation to remove the tumour, her hopes of improvement were dashed when Mr Brophy declined to operate.
Psychiatric evidence tendered to the Judge indicated that despite all this, Mrs Waller has coped surprisingly well but nevertheless has experienced periods of depression, and feelings of anger. In late 2003 Mrs Waller’s marriage came to an end. The Judge found, on the balance of probabilities, that the breakdown of the marriage was not caused by Professor Burns’ negligence. However, the change in Mrs Waller’s circumstances required action on her part that is relevant to the assessment of damages. The Judge said at [84]:
Her separation from her husband has required that she find a new home away from Kangaroo Island and that she learn to live alone and/or with new carers. Furthermore, because of her previous relative isolation on Kangaroo Island, and because of the mis-diagnosis of MS, the plaintiff has never had any proper rehabilitation treatment or advice. Having met Dr Marshall for the first time on 8 January 2004, the plaintiff has been excited by the prospects raised by Dr Marshall for improvements in her condition by various types of rehabilitation treatment. However, with a couple of minor exceptions the recommendations of Dr Marshall have not yet been able to be implemented and it is unclear to what degree they will benefit the plaintiff and assist to shape and improve her future life.
In the immediate future it appears that the plaintiff will have plastic surgery to deal with the pressure sores. Evidence before the Judge indicated that Mrs Waller could, and would, undertake a rehabilitation program which, if things go well, would improve Mrs Waller’s ability to cope with her condition. As to this the Judge said at [85]:
Dr Marshall believes the plaintiff now needs plastic surgery on her present pressure sores. However, she has not yet been seen by any plastic surgeon. I accept the opinion of Dr Marshall that there needs to be plastic surgery which will cover the pressure sores, although the plaintiff will always be particularly at risk in the future from further sores in the same areas. Each such operation will require the plaintiff to be in hospital for at least eight weeks and in addition there is likely to be a lengthy period of rehabilitation before she can sit or lie normally on the affected area. There is a danger that the scar tissue may not heal properly.
As to the rehabilitation program, the Judge said at [86]:
During such rehabilitation doctors, physiotherapists, occupational therapists, psychologists, counsellors and others would look at all aspects of the plaintiff’s disabilities and treatment and endeavour to equip and empower her, as best as is possible, to minimise her problems and to live independently. It would include implementing new techniques for dealing with her bladder and bowel problems. She would be taught ways to minimise the risk of future pressure sores. Programmes would be undertaken to strengthen her upper body and to teach her safe techniques for movement.
There is an inevitable element of uncertainty about Mrs Waller’s future. As to accommodation, the Judge said at [87]:
Once the proposed rehabilitation course is completed the plaintiff will need to find new permanent accommodation. What, and where, that might be is entirely unknown. It is likely that she will obtain a reasonable sum of money on a property settlement on her ultimate divorce from her husband which she would have used in any event to purchase some type of suitable independent accommodation for herself. There are a number of possibilities, and at this stage none is any more likely than any other.
That is a general sketch of Mrs Waller’s situation.
Mrs Waller needed a considerable amount of care in the past, and will continue to do so. As to the past, the Judge said this at [91]:
Up until the end of 2003 the 2^nd plaintiff generally provided all of the day-to-day care which the plaintiff required as a result of her paraplegia. During the day he was nearby on the farm and was able to be summoned quickly by mobile phone if he was needed. During the night he was present in the farmhouse to do whatever was required for the plaintiff. The plaintiff became extremely dependent upon him and there were episodes where she panicked when she thought he was not readily available to be able to assist her.
At [126] the Judge said:
From June 1988, and to a lesser extent between early 1980 and 1982 and between 1986 and June 1988, the defendants’ negligence in 1979 created a substantial need for the plaintiff to have assistance daily for her personal and domestic activities and for transport away from her home. Up until the end of 2003 this assistance was provided principally by the 2^nd plaintiff. The plaintiff described him as her right hand man and as her second hand. From early 1980 to about the end of 1982 some assistance had been provided by the plaintiff’s mother-in-law. A small amount was provided by the plaintiff’s daughters. Since 6 January 2004 it has been provided principally by the plaintiff’s daughter, Tracey.
The change in January 2004 was a result of Mrs Waller moving to Adelaide. As the Judge said, all of this will change again when Mrs Waller establishes a new home, and completes the proposed rehabilitation course. If the pressure sores are successfully dealt with, and Mrs Waller benefits as is hoped from the rehabilitation course, she will be able to prepare her own meals and to carry out light housework from her wheelchair. Even so, as the Judge said at [93]:
It is likely that she will need assistance for several hours each day from paid carers in the house for work which she cannot do because of her disabilities. If she has further problems with pressure sores, injuries or illnesses or other problems, it is likely she would need more services from carers during such periods, but if things go well she may not need extended periods of such care. As she gets older it is likely that her need for the services of carers will increase.
There will also be a need for paid assistance for maintenance and gardening. The Judge said that there was a “major issue” as to the extent to which Mrs Waller would require “passive care”, meaning having someone available, particularly at night, to come to her assistance if she needs help: at [94]. The Judge said that the evidence suggested that when Mrs Waller was otherwise well she could manage fairly well on her own, but said that it was appropriate to “… make allowance for some periods of nightly passive assistance to be provided when there is particular need for it”: at [94].
The assessment of damages in this respect is difficult, because agencies that provide the relevance services have minimum periods for which carers will attend, and rates of payment depend upon a variety of factors, quite apart from different rates attributable to different types of care or assistance being provided.
Mrs Waller will continue to be dependent on a wheelchair. The Judge said it was appropriate for her to have a hand-propelled wheelchair and also a motorised wheelchair. She would need a special vehicle to transport the motorised wheelchair. Mrs Waller can drive a motor vehicle with modified hand controls, but will need assistance getting into and out of the vehicle, and loading and unloading the wheelchair: at [96]. As would be expected, the Judge found that Mrs Waller will require a considerable amount of ongoing medical treatment and supervision. She will need a substantial amount of medication, and a wide range of medical aids.
Award for future home care
The Judge’s task was a difficult one. He had to allow for a possible improvement in Mrs Waller’s ability to care for herself, and for possible lessening of her ability to care for herself, due to things such as pressure sores and the aging process. The Judge evidently proceeded on the following basis, set out in his reasons at [71]:
Although it was not directly addressed in the medical evidence, as a matter of commonsense I infer, and find, that after any removal of the cyst in about early 1980 the plaintiff’s disabilities thereafter would not have been any greater than they were when she was at her best during the period of spontaneous remission between 1982 and 1986, and with the removal of the cyst her disabilities would not have increased from 1986 onwards.
…
This means that her damages are to be assessed on the basis that in any event she would have had some problems with her legs and have walked with some limp, but she would have remained reasonably ambulant and fully continent. While she would not have been able to run and play sport, and have been restricted in more strenuous activities, she would have been able to perform almost all of her usual household duties and to have engaged in a wide range of social and recreational activities.
These findings were open to the Judge on the evidence.
Mr Harris QC, counsel for the defendants, submits that the Judge failed to allow for the fact that before 1980 Mrs Waller needed and received considerable assistance from her husband and mother-in-law. He submits that damages should have been assessed on the basis that this level of need would have continued, and that the allowance for that amount of assistance should be deducted from the allowance that the Judge made. In other words, his submission is that Mrs Waller needed a substantial amount of assistance before 1980, and that need would have continued.
I agree with Mr Walsh QC, counsel for Mrs Waller, that this submission is not correct. It is true that before 1980 Mrs Waller needed a considerable amount of care, provided mainly by her husband. But the findings that I have set out indicate that the Judge’s assessment of damages was made on the basis that, with proper treatment, Mrs Waller’s condition would have improved significantly, and that she would have needed little by way of care and assistance.
I can find no apparent error in the Judge’s approach to this aspect of the damages. I repeat that allowance has to be made for the difficulty of the Judge’s task. The difficulty is not simply factual. Quantifying the award is difficult, because of the variations in the rate of charging by commercial providers of the relevant services, having regard to the nature of the services, the times at which they are provided, and whether they are provided short term and “on call”, or not.

The Judge’s approach with this, as with other heads of damages, was to outline the findings that he made, and the matters to which he had regard and the matters which he excluded. Appropriately, he proceeded on a “broad axe basis”, and having outlined the relevant factors he fixed a lump sum, without indicating just how it was determined. Counsel did not challenge the charging rates to which he had regard, and there was no challenge to his use of certain actuarial calculations put before him based on a life expectancy reduction of 5 per cent and on a 3 per cent discount rate.
I made my own rough assessment under this head. The Judge’s figure is within the range that I determined, although at the lower end of the range.
I am satisfied that the Judge’s factual findings on which the award under this head was based are soundly and reasonably made. My impression is that the Judge’s assessment of Mrs Waller’s needs was, if anything, slightly conservative. One must bear in mind that it might turn out that her needs are a good deal greater than allowed for by the Judge, but it also might turn out that they might be less than the Judge forecast.
The award of damages under this head cannot be said to be excessive.
Nor is it inadequate. Mr Walsh complained, in arguing the cross-appeal, that the expert evidence of Dr Marshall, which the Judge accepted, supported a finding that Mrs Waller needed substantially more hours of care and assistance than the Judge found she needed. The answer to that submission is that the Judge’s acceptance of Dr Marshall’s evidence does not mean that the Judge was agreeing with, and adopting, each and every opinion expressed by Dr Marshall. It needs to be borne in mind that Dr Marshall’s evidence allowed for a range of outcomes. What the Judge has done is to find that Mrs Waller’s needs will be towards the lower end of the scale or range that can be identified from Dr Marshall’s evidence.
The award of damages under this head was neither too high nor too low.
Award for future medical and like services and special equipment
Mr Harris submits that this award is excessive.
Mr Harris points out that the Judge did not indicate how much of the $620,000 allowed relates to items of equipment for use at home (such as a special bed and a mobile shower chair), and how much relates to medical aids and appliances, and how much relates to medical treatment.
That is true. But the Judge summarised in some detail the matters for which he allowed, describing them, referring to the need for them, and to their cost. There can be no objection to his method of dealing with the topic. It was inevitable that the Judge would take a broad axe approach to this topic, and an attempt to quantify each of the different aspects of this head of damages would probably have resulted in a false appearance of precision, because at the end of the day the broad axe has to be applied.
This aspect of the assessment also is difficult. The need for some kinds of treatment in the future was fairly clear, but even then the frequency of the treatment could not be stated precisely. As to other types of treatment, there was a likelihood that they would be needed, but no certainty. As well, the Judge had to assess Mrs Waller’s needs, their frequency and cost, over a lengthy period of time.
Mr Harris made the point that special damages to trial were assessed at $10,000, and this amount stood in stark contrast to the amount of $620,000 allowed under this head. Beyond that, he did not descend into detail. This is not said critically, because the argument on appeal ranged over a number of difficult issues. But it makes the task of the Court on appeal a difficult one, because the Court is left to consider the lump sum, no attempt having been made to dissect it into its components or to identify any error of approach or quantification.
As to the point made by Mr Harris, the answer may well lie in what the Judge said in relation to special damages to date of trial. The Judge said at [119]:
The plaintiff made little effort to prove the quantum of any past special damages. I was informed during the trial that I would be given a schedule of the special damages claimed, but it was not supplied.
…
While it is for me to do the best that I reasonably can on the evidence available to me I am not required to guess what expenditure may have been incurred.
My impression is that much greater attention was given at trial to proof of future needs. It also appears from the Judge’s reasons that to the date of trial a number of recurring expenses had been met, or substantially met, through schemes funded by the Commonwealth Government. In future that will not be the case.
The Judge was provided with quite detailed information about Mrs Waller’s future needs under this head. Apart from expert evidence describing Mrs Waller’s needs, and informing the Judge about the likely cost of meeting those needs, the Judge had exhibit P34. It lists 134 items, relevant to several different heads of damages, the unit cost of each item, the estimated extent of the requirement, the weekly cost provides a lump sum figure arrived at using a 3 per cent discount rate. Exhibit P34 provided the Judge with a substantial amount of useful information.
On appeal it is not practical for this Court to revisit the whole of the oral and documentary evidence, with a view to making its own assessment of the damages to be allowed under this head, performing once again the role of the trial Judge. On the other hand, nor is it appropriate to abdicate responsibility by saying that although a complaint is made, no error has been identified and therefore the Court will not interfere.
I have considered the Judge’s reasons on this aspect of the damages. The findings of fact that he makes, in particular his findings as to future needs, appear to me to be readily supportable by the evidence before the Judge. I have compared the Judge’s references to costs with exhibit P34, and generally what the Judge has said about cost appears to me to be supported by that exhibit which, as I understand it, is in turn supported by expert evidence as to costs. I am mindful of the fact that Mrs Waller will need a considerable amount of ongoing care and treatment, of medication, and of medical aids.
I have done my best, once again, to make an assessment of an appropriate award under this head. I have had regard to the Judge’s findings, and to exhibit P34. I add that the allowances made by the Judge seem to me to be reasonable. On the basis of this rough check, the figure arrived at by the Judge is well within an appropriate range. I recognise that the check is a rough one, but the fact remains that it does not suggest the Judge has erred. The only comment I make is that at [105] the Judge referred to a claim for $440,000 “for the cost of subsequent hospitalisation apart from plastic surgery”. I was not able to identify the source of that figure. But it is apparent from what the Judge said that he did not allow that figure, and to the extent he made an allowance for that matter, it must have been a good deal less. In any event, it remains the case that my own rough check leads to the conclusion that the Judge’s figure is within an appropriate range.
I conclude that no error has been demonstrated under this head.
Award of damages for past gratuitous services
The defendants challenge the award made under this head, on the basis that it is excessive. The submission by Mr Harris is that the Judge appears to have assessed damages on the basis that Mrs Waller required assistance for about four hours a day, in the period until trial, despite expressing some doubt that she required that much assistance. The main finding by the Judge on this topic is at [126], a passage set out above. The Judge went on to say at [128]:
In their respective evidence the plaintiffs did not attempt to quantify in terms of hours spent the time occupied by the 2^nd plaintiff in his providing the services in question to the 1^st plaintiff (Even if they had attempted to quantify the number of hours on average it probably would have been such a gross generalisation that it would be of little use.). I doubt that the four hours of services a day from a carer which Dr Marshall thought was appropriate for the future is also likely to have been appropriate in the past while the plaintiff lived in the Kangaroo Island farmhouse. While the plaintiff did not then have the benefit of the proposed rehabilitation treatment or special modifications to her house to make it fully suitable for use by her in her disabled state, her lifestyle at that time did not create as much need for care as it will in the future. If paid care had been employed to meet the plaintiff’s needs it probably would only have been for about two or three hours each day. However, prior to the separation greater periods of care were needed where the plaintiff was away from the Kangaroo Island farmhouse and when she had other problems such as pressure sores and the deep vein thrombosis. Many of the journeys in the family car in which the 2^nd plaintiff transported the plaintiff would have been undertaken by the 2^nd plaintiff in any event, such as the regular Friday trips into Kingscote.
It is the second sentence in that passage to which Mr Harris appears to refer.
This passage of the Judge’s reasons suggests that he worked on the basis of a need for about two to three hours care a day. However, there were periods when more care than that was needed. But in addition there was the question of an appropriate allowance for what the Judge called “past passive care”. The Judge said at [130] that Mrs Waller was dependent on her husband, and “was comforted by the knowledge that he was nearby on the farm during the day and with her in the house during the night in case she should need him”. My own impression is that at [130] the Judge has made a finding that Mrs Waller had a need for passive care, that it was in fact met by her husband, but that if he had not been available, it would have been met by hiring a paid carer who would have been available by mobile phone or “Vital Alert” connection. It would not have been a case of employing a person to stay in the farmhouse with Mrs Waller. It follows that as well as allowing for paid care for two or three hours a day, the Judge made an allowance for the cost of a carer being available on call, and he appears to have contemplated that this would be an ongoing arrangement. As well he said at [130]:
However, in the assessment I do make a significant allowance for some occasions on which the plaintiff’s needs would have required the employment of a carer to live with her in the farmhouse on Kangaroo Island.
I have considered the material relied on by the Judge in relation to rates of charging. Again, the Court has the difficulty that this is not a matter on which the parties made any detailed analysis of the Judge’s approach.
I have made my own estimate of an appropriate allowance, using the findings made by the Judge as to Mrs Waller’s needs, the charging rates to which he referred, and working on the basis of 15 years of need, which I recognise may be a little on the low side. In relation to overnight passive assistance, I had regard to exhibit P34. That suggests a weekly cost of $700, or roughly $35,000 a year.
Once again, on this approach I arrived at a figure a little higher than that allowed by the Judge. I found no reason to conclude that the Judge’s figure was too high.
I am not satisfied that the Judge has erred.
Award for loss of earning capacity
Mrs Waller complains that the Judge erred in this respect.
The Judge’s decision to award nothing for loss attributable to her loss of earning capacity prior to the trial was based on a brief passage of evidence, which appears to have been the only evidence directed to the topic. Mrs Waller had said in evidence that if her condition remained as it was in 1983 (during the period of remission) she would not have returned to work because she could not stand for any length of time. Nor did Mrs Waller try to find employment during the period of her remission: [134]. The Judge referred also to the fact that while Mrs Waller lived on Kangaroo Island (until late 1983) there was no employment available to her that she could have undertaken with the level of disability that she would have had had the cyst been removed in 1980: [135].
Mr Walsh argued that the Judge erred. He said that the Judge focussed too much on employment as a hairdresser, which would require Mrs Waller to stand all day. He made the point that she was a determined and resourceful person, and would have found some kind of part-time employment on Kangaroo Island, had the cyst been removed in 1980.
There is a good deal of force in this submission. But I am not persuaded that the Judge is wrong. Mrs Waller’s evidence provides support for the finding.
As to the future, the Judge said that once Mrs Waller moved to Adelaide, “… it is likely that she would have found some type of gainful employment even with the disabilities which she would have then had in her legs”, assuming removal of the cyst in early 1980. In that context he referred to her as being “a very presentable and resourceful person”. Mrs Waller was 50 years of age at trial. I recognise that to some extent this finding supports Mr Walsh’s attack on the failure to award damages for loss to the period of trial, but even so it does not persuade me that the Judge is wrong.
However, I agree with Mr Walsh’s submission that the allowance for the future loss, in the sum of $50,000, is unreasonably low. Material provided to the Judge in exhibit P7 was to the effect that assuming Mrs Waller had worked to age 65, and had worked full-time as an employee, an appropriate amount to allow for a total loss of earning capacity was $273,000. Mr Walsh did not suggest that this was the appropriate allowance. He used this figure as a scale against which to compare the amount awarded by the Judge.
There can be no precision in this. In the light of the evidence before the Judge, I consider that an appropriate allowance in respect of this aspect of Mrs Waller’s damages is $100,000, and that the amount allowed by the Judge is inadequate.
Conclusion
For those reasons I reject the criticisms made by Mrs Waller and by the defendants of the assessment of damages, except for Mrs Waller’s complaint about the allowance for future economic loss. It is appropriate to increase the allowance made under that head to $100,000. That result does not follow as a matter of course. If I thought that amounts awarded under other heads were rather high or rather generous, without being manifestly excessive, it might not be appropriate to increase the overall amount of the award. However, my conclusion is that the amounts awarded by the Judge under other heads are not towards the upper end of the range. For that reason, and having regard to the manner in which the appeal was argued, it is appropriate to proceed on the basis that the other allowances are appropriate, and to increase the award of damages.
Increasing the allowance for future economic loss does not entitle the plaintiff to additional interest. Accordingly, in my opinion it would be appropriate to dismiss the appeal in relation to the award of damages, but to allow the cross-appeal for the purpose of increasing the amount awarded in favour of the first plaintiff to $3,252,000.
PERRY J. This is an appeal against a judgment given following a trial in the District Court.
The respondents, Vivien Kaye Waller (“Mrs Waller”) and Kenneth James Waller (“Mr Waller”) were the plaintiffs in the proceedings. The appellants, Flinders Medical Centre (“FMC”) and Richard John Burns (“Professor Burns”) were the defendants.
At the relevant time FMC, which is a body corporate, managed and conducted a public hospital known by the same name, situated at Bedford Park.
For some time before 1975, Professor Burns practised as a medical specialist, more particularly as a neurologist. In 1977, he became Senior Director of Neurology at FMC, and in 1978 an Associate Professor of Medicine at Flinders University.
In the proceedings, Mr and Mrs Waller claimed damages for alleged negligent treatment of Mrs Waller by Professor Burns in the course of his practice as a neurologist. The trial judge awarded Mrs Waller damages against both appellants in the sum of $3,202,000 including interest.
The trial judge awarded Mr Waller damages of $16,800, including interest.
In their notice of appeal, the appellants challenge the trial judge’s finding that Professor Burns was negligent, and challenge various aspects of the trial judge’s assessment of Mrs Waller’s damages.
In a notice of cross-appeal, Mrs Waller complains that in various respects the trial judge’s assessment of damages was inadequate. She seeks an order that the amount of damages awarded to her be increased.
In its defence, FMC admitted liability for the acts and omissions of Professor Burns after 1 July 1997. That admission makes it unnecessary to deal further with the case as against FMC.
The trial judge gave a lengthy, carefully reasoned judgment.
It was necessary for him to deal with a series of examinations of Mrs Waller by Professor Burns, commencing in 1975 through to 1997.
FMC’s records relating to Mrs Waller, which included the clinical notes maintained by Professor Burns relating to the period between 1977 and 1988, were destroyed in 1996.
There can be no criticism of FMC for destroying the records, as it was not known at that stage that there was a potential legal claim. The destruction was in accordance with its standard procedure.
The trial judge found Mrs Waller to be generally an impressive and reliable witness.
While accepting Professor Burns’ honesty, the trial judge found that he did not have a good recollection of his dealings with Mrs Waller and he was obliged to rely upon what was recorded in documents then still available.
This was no reflection upon Professor Burns, as he had seen many thousands of patients over the intervening period, and there was no particular reason why he should remember the detail of his dealings with Mrs Waller.
In the result, as to the course of events over the period in question, the trial judge was obliged to rely, in the main, upon a series of letters written by Professor Burns to Mrs Waller’s general practitioner, and Mrs Waller’s evidence.
I will necessarily have to follow the same course.
The narrative account of the background to the matter, which I set out below, will therefore contain a number of references to the terms in which Professor Burns reported to the general practitioners. It is drawn generally from the trial judge’s reasons for judgment.
Background
Mrs Waller is now aged 51 years. She was born on Kangaroo Island and continued to live there until 2003.
She qualified as a hairdresser. Until prevented from doing so by reason of her health, she worked in a hairdressing business on Kangaroo Island, except for periods off when she was caring for her children.
Mr and Mrs Waller married in 1972. Mr Waller worked on his father’s farm and also as a wool classer.
In the early years of their marriage, Mrs Waller was in good health. She played competitive netball and tennis. She led an active social life.
On 1 April 1975, while pregnant with her second child, Mrs Waller consulted Dr Alcorn, a general practitioner in Kingscote, complaining of back pain. An x-ray of her thoracic spine was normal.
A little later, on 17 April 1975, she consulted Dr Alcorn again, complaining of numbness in her legs and feet, as well as a continuation of the back pain. She exhibited decreased sensation below the level of her breasts and some ankle spasms.
Dr Alcorn referred her to Professor Burns. At that stage, Dr Alcorn feared that Mrs Waller had multiple sclerosis (“MS”), but he did not tell her.
On 22 April 1975, Professor Burns admitted Mrs Waller to St Andrew’s Hospital, where he conducted various examinations and tests.

He reported to Dr Alcorn by letter of 24 April 1975. Part of his report reads as follows:
“On examination the cranial nerves were normal as were the upper limbs. In the lower limbs there was weakness of hip flexion and knee flexion, greater on the right and some weakness of dorsiflexion on the right foot. Tone was increased in the legs with non-sustained clonus at the ankles and her knee and ankle jerks were hyperactive with bilateral extensor plantar responses. Sensory examination revealed impairment of vibration sense and position sense, mainly in the right foot with some mild but definite pain and temperature impairment on the left side. Hsi level, admittedly subjective to both touch and pain, could be demonstrated at about T6. There was sacral sparing.”
In the letter, he concluded:
“The signs indicated a probable intramedullary lesion in the thoracic cord. This seemed to be either a post-viral transverse myelitis or a first episode of multiple sclerosis.”
Professor Burns did not carry out any further investigations at that stage. The trial judge accepted that this was in part attributable to her pregnancy, which he described as “an inhibiting factor”.
Mrs Waller was discharged from St Andrew’s on 1 May 1975. On that date, Professor Burns wrote again to Dr Alcorn. In the letter he said:
“The diagnosis I think lies between a first episode of multiple sclerosis versus a transverse myelitis of post-viral origin. … I have not mentioned the diagnosis of multiple sclerosis to the patient or her husband. I have told them that it is some type of loss of myelin in the spinal cord of an inflammatory nature and that I am hopeful that in time it will get better. … I would very much like to learn of her progress and, if she is coming to Adelaide at some stage in the future, I would be only too pleased to be able to examine her again.”
By letter of 13 May 1975, Professor Burns wrote again to Dr Alcorn to report the outcome of a further test of the spinal cord which had been made. He reported:
“The results of this patient’s I.g.G in the C.5.F indicate that she has .03G per litre compared with the protein which was .10 G per litre. This means that 30% is I.g.G which is a finding greater than normal and consistent with a diagnosis of multiple sclerosis.”
Mrs Waller’s second child was born on 2 November 1975. From about that time, her symptoms began to resolve. They seem to have disappeared by about mid-1976, at which time she started playing competitive netball again and resumed part-time hairdressing.
However, in early May 1978, Mrs Waller experienced a recurrence of symptoms in the left leg and intermittent aches in her back and around her waist. Dr Alcorn referred her again to Professor Burns.
He reported to Dr Alcorn by letter of 13 June 1978. He explained that on examination he found lowered sensory responses in the left leg which he attributed to:
“… an intramedullary thoracic cord lesion on this occasion mainly on the left side involving particularly the posterior columns.”
He went on to observe:
“Although the condition is not widely disseminated, the second episode involving the other side of the spinal cord makes a diagnosis of multiple sclerosis much more likely, bearing in mind also the previous elevation of her spinal fluid gamma globulin.”
Professor Burns told Mrs Waller that he thought her leg would recover by itself in time. He explained to her that she might have a “benign form of multiple sclerosis”. Importantly, he said in the letter that he had explained to her:
“… but .. even now I couldn’t be certain and in any case it seems to be behaving in a rather benign way.”
This was the first time that Mrs Waller was told that she might have MS.
Her condition did not improve. She said in evidence that at that stage she was walking with a bad limp, and felt tired and unwell. She stopped playing sport and gave up her part-time hairdressing work. She needed help from her mother-in-law to manage the household chores.
When her condition continued to worsen, she was referred again by Dr Alcorn to Professor Burns.
He examined her at FMC on 5 December 1979. On the same day, he wrote to Dr Alcorn. In the letter, he reported:
“There is still no evidence of disseminated disease but her thoracic cord lesion is now more obvious. I don’t feel inclined to do any further investigations, although visual evoked responses would be of interest. I think she needs lots of reassurance at this stage and I have tried to give her this. It might be worth trying the effects of Baclofen, say 10 mgms b.d. increasing gradually if necessary to 25 mgms b.d. This might alleviate the spasticity and enable her to walk a little better.”
Mrs Waller was not told by Professor Burns that there was any doubt in the diagnosis of MS, neither did he recommend any further investigation or test.
Mrs Waller’s condition continued to worsen. She began to have episodes of faecal urgency and incontinence. Her tendency to drag her right leg became more pronounced. She continued to feel very tired.
Professor Burns examined her again on 16 September 1980. On the same day, he reported by letter to Dr Jeffries, a partner of Dr Alcorn. The letter reads in part:
“Her neurologic signs remain confined to the thoracic cord. I still believe that demyelination is the most likely pathogenetic mechanism although it is to be noted that she does not have, at the moment, evidence of disseminated neurologic lesions. The natural history so far is quite in keeping with this form of Multiple Sclerosis and her recent exacerbation may well have been triggered by increased physical stress and demands placed on her.
As she seems to be improving a little I would not suggest a further course of steroids at the moment although these could be given if her disability does progress. Something like 60 mgms of Prednisolone for ten days could be then tried. In the meantime I think she should continue with her Baclofen. I have advised her to try and rest a little more and I am hopeful that with these measures alone some degree of improvement will occur although it seems likely that some of her neurologic signs are now of a permanent nature.”
At that stage, Professor Burns did not advise that any further tests or investigations be pursued to confirm or disprove the diagnosis of MS.
In 1981, as the plaintiff’s ability to walk deteriorated, she took to a wheelchair.
In September 1981, she underwent two weeks physiotherapy and other treatment as a patient in the Multiple Sclerosis Clinic at Memorial Hospital. During that time she was seen by Professor Burns.
On 10 September 1981, Professor Burns wrote to Dr Alcorn. Part of the letter is as follows:
“As you know there has been a progressive increase of weakness in her legs in the last six months or so. She required a walking frame at first but now can only walk a few paces with this and uses a wheelchair. … Once again there are no symptoms referrable to the upper limbs or cranial nerves.
On examination the signs were as previously confined to the lower half of the body. She had gross weakness of the legs with virtually no hip flexion but the weakness was global being greater on the right side. The distribution was of a pyramidal nature in that knee extension for example, was stronger than knee flexion. She had marked hypertonicity in the lower limbs with bilateral ankle clonus, hyperreflexia of the knee and ankle jerks and extensor plantar responses. Sensory examination revealed a vague level at about T7. Pain and temperature modalities were intact although subjectively impaired in various areas while position sense was grossly impaired in the feet and knees and vibration sense impaired to the iliac crests.
Her neurologic signs remain confined to the thoracic cord involving the cortico-spinal tracts greater on the right and the posterior columns. Despite the fact that she has no neurologic abnormalities rostral to[1] the thoracic cord has always raised slight doubts about the diagnosis but I still think that demyelination is the most likely explanation rather than a spinal cord angioma.[2]
I am afraid that with this type of insidious, progressive paraplegia that occurs in MS, significant recovery is unlikely. … She is fortunate in that she maintains reasonable sphincteric control and her mental attitude has always been exemplary.
… The question of linoleic acid in the diet and also transfer factor remain controversial but I think at the present time it is fair to say that there is no agent that can really offer a significant chance of improvement.”
[1] Rostral to, means above.
[2] Tumour.
Professor Burns did not examine Mrs Waller again until November 1984.
Between her spell at the Multiple Sclerosis Clinic at Memorial Hospital until November 1984, Mrs Waller appears more or less to have managed her own treatment. She took multiple vitamins and received massage from a reflexologist, to whom she had been recommended by a friend. The use of her legs appeared to improve.
In January 1983, she returned the wheelchair to the Kangaroo Island Hospital, thinking that she had no further need for it. She was able to walk, with occasional support, although she confined herself largely to walking inside the house.
On 28 November 1984, Professor Burns examined Mrs Waller again. He reported to Dr Alcorn by letter of that date. He described her has having had a “remarkable remission and the degree of recovery of function has been most gratifying”. He went on in the letter to say:
“The signs one sees now are presumably the result of her previous spinal cord demyelination. There is nothing to make one think that the disease is active and I just hope that she can remain in remission for an indefinite period.”
The remission did not last much longer. From about March 1986, her condition again started to deteriorate, and by late 1986, markedly so. By November 1986, she had spasms in her legs and was again using a walking stick. She was advised to resume use of a wheelchair, but resisted it in the hope that she could remain ambulant.
However, in May 1988, she twisted her ankle, at which stage she was obliged to use a wheelchair, to which she has been confined ever since.
She consulted Professor Burns again in June 1988. Part of his letter of 21 June 1988 to Dr Alcorn is as follows:
“Many thanks for referring Mrs Waller back for review after all these years.
Although it seemed likely that she has gradually deteriorated over a period of some years, things got rapidly worse about a month ago. Until then she was able to walk long distances, usually with the aid of a stick and was capable of doing the housework. … She then slipped over and sprained her ankle and since then there has been a rapid deterioration of function. She can no longer walk and in fact can barely stand. She is unable to turn in bed and as you indicated she has become incontinent of urine. …
Examination revealed signs confined to the lower half of the body with a spastic paraplegia. She was unable to overcome gravity with most muscles; there was increased tone in the legs with knee and ankle clonus and her knee and ankle reflexes were hyperactive, both plantars being extensor. Sensory examination revealed a level at about T10 which involved posterior column modalities, namely vibration sense and position sense. There was some subjective disturbance to pain and temperature but this was less definite.
Her signs then are in keeping with the previously observed deficit of a thoracic cord lesion involving the corticospinal tracts and posterior columns. Multiple sclerosis is the presumed diagnosis despite the absence of disseminated lesions. The pattern of involvement and the exacerbations and remissions would be quite in keeping with this diagnosis but there is always that little doubt in one’s mind when the signs are so localised. It is for this reason that I have arranged for her to have a spinal cord MRI just to exclude other much less likely possibilities such as spinal Av malformation.
Hopefully she will improve spontaneously but this cannot be guaranteed. … She maintains her brave approach and attitude to her disease although clearly now she is very disabled but gets by because of her strong personality and her very supportive husband.”
Before writing that letter, Professor Burns had arranged for a magnetic resonance imaging (MRI) scan to be performed at Royal Adelaide Hospital. She underwent the scan on 23 June 1988. As the trial judge indicates in his reasons, the only scanner available at that time in Adelaide was at the Royal Adelaide Hospital, where it had been in operation for a short time only.
The scan was performed by Dr Robertson. The latter reported to Professor Burns:
“… No evidence of any AVM or tumour was seen from the T6 region down.
No definite evidence of any demyelination lesions was seen either.”
When Professor Burns reported the outcome of the MRI scan to Dr Alcorn by letter of 19 July 1988, he stated that the scan:
“… seems to support the diagnosis of multiple sclerosis even though no areas of demyelination were seen on the scan.”
What is important to note is that the MRI scan was limited to the T6 region down. The significance of this will appear later.
From about that time until July 1997, Mrs Waller did not see Professor Burns again. It appears that her condition, severe though it was, remained relatively static during that period.
Professor Burns saw Mrs Waller again in July 1997. By letter of 22 July 1997, he reported to her then general practitioner at Kingscote, Dr L.P. Jeffries:
“Many thanks for referring Vivien Waller who I remember very well.
She is now aged forty-three and in the last nine years her neurologic disorder has remained more or less unchanged; perhaps her bladder function is a little worse. She has no symptoms referrable to her upper limbs or cranial nerves. She has no power in her legs at all and has no feeling below her breast line. …
On examination she was her usual cheerful, alert self. The cranial nerves and upper limbs were normal. She had a complete paraplegia with increased tone in her legs and frequent bouts of clonus. Her deep tendon reflexes were all brisk especially the lower limbs with upgoing plantar responses. She had a complete sensory loss at about T6. This involved posterior column and spinothalamic sensation. She was unable to stand.
She undoubtedly has a lesion in her thoracic cord and as you know a provisional diagnosis of multiple sclerosis has been made although this is not disseminated anatomically. Admittedly her symptoms were intermittent at first but the complete absence of signs above the thoracic cord and the rather dense neurologic deficit with complete spinothalamic involvement is a little unusual in my experience for multiple sclerosis. It was for that reason that an MRI scan was done in 1988 thinking that she might have some other intrinsic cord lesion such as a vascular malformation. I still have some doubts about the diagnosis and after discussing things with Vivien I am arranging for her to have another MRI scan of her cord. The technology is a little better now and although it is unlikely that one will find a treatable lesion, I think it is important to try and establish a diagnosis with more certainty. …”
The MRI scan recommended by Professor Burns was performed on 3 November 1997. The radiologist’s report was in part:
“MRI Thoracic Spine: 3/11/97
…
FINDINGS: There is a well defined oval expansile intramedullary lesion which extends from the C7-T1 level to the T4/5 level. It measures approximately 8cm in length. … It perhaps shows very slight enhancement of its margins on the post contrast images. However there is no discrete solid component.
…
CONCLUSION: Large intramedullary lesion likely to be longstanding. The most likely diagnosis is a slow growing cystic cord tumour possibly a haemangioblastoma without a discrete vascular nidus. Presumably there is no history of significant spinal trauma which may have led to development of hydromyelia.”
Two days later, on 5 November 1997, Professor Burns rang Mrs Waller to say that she did not have MS after all; rather, a tumour on the spine.
On 7 November 1997, Professor Burns wrote to Dr Jeffries to report this development. He explained that he would be discussing the matter with a number of other colleagues to decide what course of action should be followed in light of the new diagnosis. In the letter he observed:
“As you know I have always been concerned about the diagnosis of multiple sclerosis for a variety of reasons and while it would be intriguing to find out I don’t want to subject her to any procedure if it is going to run the risk of making her worse.”
The next development was the admission of Mrs Waller to FMC as an in-patient on 16 February 1998. She believed at that time that spinal surgery to remove the tumour would be performed by a neurosurgeon, Mr Brophy. Professor Burns did not examine her on that occasion, but told her that he and Mr Brophy would review the scans, with a view to deciding what was to be done.
Mrs Waller did not have any further contact with Professor Burns.
The next day, that is, 17 February 1998, a further MRI scan was performed, after which Dr Brophy informed Mrs Waller that he was not intending to do an operation. According to her evidence, which was accepted by the trial judge:
“He thought the nerve damage was too great and I wasn’t going to get no better quality of life so that he decided that they weren’t going to operate.”
Dr Brophy suggested that she have another MRI in six months’ time to see what the growth rate of the tumour was.
While Mrs Waller and her husband were with Dr Brophy, and after he had told them that he was not intending to operate, Mr Waller asked Dr Brophy “if the tumour had been what caused Mrs Waller her problems for the last 22 years”. He said in answer that the tumour would have caused her problems.
Mrs Waller then took a second opinion from another neurologist, Dr Andrew Black, who referred her in turn to Professor Nigel Jones, the Professor of Neurosurgery at the University of Adelaide.
After he had seen Mrs Waller, he wrote to Dr Jeffries. In the course of the letter, he said:
“Her MRI scan shows an intramedullary tumour which was reported to be most likely a haemangioblastoma. The tumour extends from the T4/5 disc space up to the T1 vertebral level. It appears to be relatively well defined and has some mixed signal intensity within it. There is no nidus of enhancement after gadolinium which I think would be very much against the diagnosis of haemangioblastoma and the appearances to me are more like an ependymoma.”
Mrs Waller decided to go ahead with an operation to remove the tumour. This was performed by Professor Jones on 16 October 1997.
Contrary to his expectations, he found that the tumour was an intramedullary epidermoid cyst, which he removed completely.
Thereafter, the plaintiff’s symptoms remained static. They did not worsen. The paraplegia of the lower part of her body remained unchanged. Mrs Waller continued to live on the farm on Kangaroo Island with her husband. However, their relationship eventually deteriorated, and by the end of 2003, she and her husband agreed that their marriage was finished and that they should separate.
Early in January 2004, Mrs Waller moved from Kangaroo Island to Adelaide. Mr Waller remained on Kangaroo Island and continued to run the farm.
Multiple sclerosis
It is convenient at this stage to say something about MS.
I quote from the trial judge’s reasons for judgment:
“[45] MS is a very serious disease which can lead to major disability and death. There is no cure for it. Its causes are unknown. There is no specific diagnostic test for it and diagnosis is only through clinical verification of what are known as the Schumacher criteria. These are:
‘1.     Neurological examination reveals objective abnormalities of CNS function.
2.     Examination or history indicates involvement of 2 or more parts of the CNS.
3.     CNR disease predominantly reflects white matter involvement.
4.     Involvement of CNS follows 1 or 2 patterns:
i.Two or more episodes, each lasting at least 24h and a month or more apart.
ii.Slow or step-wise progression of signs and symptoms over at least 6 months.
5.     Patient 10-50 years old at onset.
6.     Signs and symptoms cannot better be explained any other disease process.” (“CNS is Central Nervous System.)
[46]In this case the issue was whether the plaintiff satisfied the criteria Nos 2 and 6. Criterion 2 required disseminated lesions, which is why the disease is called “Multiple” Sclerosis. The manifestations of MS are such that once a label of MS is placed on a patient any symptoms thereafter displayed by the patient are likely to be attributed to the MS even if they have a different cause. There was particular difficulty in the diagnosis of MS from lesions in the spinal cord and rigorous processes were required to ensure that the proper diagnosis was not of some other medical condition which was treatable.
[47]Epidermoid cysts of the type found in 1998 in the plaintiff’s thoracic spine are an extremely rare type of tumour. There is no recorded previous instance of such an intramedullary[3] tumour in this State, and there are only about fifty such cases recorded in the word. No doctor who gave evidence or reports in this matter had ever previously seen one. They are benign cysts which are formed before birth and grow slowly. They can become clinically symptomatic at any age, but there was no previous recorded instance of symptoms from them having remitted and returned as occurred with the plaintiff.
[48]Although fairly rare, there were various other types of spinal tumours which could have caused lesions in the plaintiff’s spine and have mimicked some of the symptoms of MS. However, generally these tumours were progressive in the onset of their symptoms and did not remit and then recur as was the experience of the plaintiff. Some such tumours were untreatable, but some could be treated.”
[3]   This means within the spinal column and is to be contrasted with extramedullary tumours which are outside of the spinal cord.
The basis of the finding of negligence

The trial judge correctly identified the duty of care owed by a medical practitioner to a patient as a duty to exercise “reasonable care and skill in the provision of professional services which extend to the diagnosis and treatment of the patient”.[4]
[4] See his reasons, par [51], citing Rogers v Whitaker (1992) 175 CLR 479.
He correctly identified the applicable standard of care as that of the “ordinarily skilled neurologist”.[5]
[5] Citing Rogers v Whittaker (supra) at 483.
He observed that in a case such as this, the evidence of what other specialists might have done in the same circumstances was “of considerable significance”, but ultimately, it was “for the court to decide the extent of the duty and whether it had been breached”.[6]
[6] Reasons for judgment, par [51], citing F v R (1983) 33 SASR 189.
In reaching his findings as to negligence, the trial judge was obliged to consider expert evidence given by a number of neurologists, not all of which was consistent.
Where there were inconsistencies, he preferred the evidence of Dr Hallpike. In his reasons, he said:
“[50] I found Dr Hallpike, a specialist neurologist who had been in practice in Adelaide for many years, to be the most impressive and convincing of the neurologists who gave evidence. I accept his opinions where they are in conflict with those of other neurologists. I accept the expert evidence of the neurosurgeon, Professor Jones. The plaintiffs submitted that I should reject the opinions of Mr North, a neurosurgeon, called by the defendants on neurosurgical practices from 1975 to 1981, which was before Professor Jones had commenced practice. However, I accept his expertise and integrity, but in my findings below I conclude his opinions are not contrary to the plaintiffs’ case.”
Dr Hallpike’s evidence was that in light of the findings made in 1975, when Mrs Waller was first seen by Professor Burns, most neurologists would have adopted what he described as a “conservative (observational) management approach in the short term”. Furthermore, Mrs Waller’s pregnancy at that time militated against more invasive investigations, such as a myelogram.
As for the attendance by Professor Burns upon Mrs Waller in 1978, neither Dr Hallpike nor another neurologist who gave evidence, Professor McLeod, thought that any question was raised as to the appropriateness of Professor Burns’ advice at that time. As of 1978, there had been what appeared to be a complete recovery by Mrs Waller for a substantial period of time which strongly pointed to MS.
One of the neurologists who gave evidence, Dr Boyce, was of the opinion that as early as 1975, or soon thereafter, Mrs Waller should have had a full spinal myelogram. But in light of the contrary opinion expressed by Dr Hallpike, the trial judge was not prepared to find Professor Burns negligent in failing to pursue myelography in 1978.
However, the trial judge accepted the opinions of Dr Hallpike, Professor McLeod and Dr Boyce, that when Professor Burns saw Mrs Waller in December 1979, he should have pursued further investigations. It is not unimportant to note that Professor McLeod was an expert witness called on behalf of the appellants.
The opinion of Dr Hallpike to that effect is set out in his report (undated) addressed to Mrs Waller’s solicitors:
“Turning to the situation when Dr Burns saw her again in 1979 (his letter, 5/12/79). There had been progression of the neurological disability. The clinical examination provided clear evidence of a spastic paraparesis with a sensory level at T12. Dr Burns wrote ‘there is still no evidence of disseminated disease but her thoracic cord lesion is now more obvious’. It was in this context that the reference was made to the VEP test to look for evidence of another site of CNS involvement. I feel that at this stage there was a need to try and achieve a firm diagnosis. There was a major, persistent - by that time progressive - neurological abnormality. According to Dr Douglas McAlpine in his chapter on The Problem of Diagnosis in ‘Multiple Sclerosis. A Reappraisal. By Douglas McAlpine, Charles E. Lumsden and E.D. Acheson, Churchill Livingstone, 2^nd Edition 1972’, the leading clinical textbook on this subject at the relevant time, ‘In practice, a provisional diagnosis of multiple sclerosis in a case of paraplegia, especially if progressive, should not be allowed to stand if after a lapse of some months only spinal cord signs are present’ [Dr McAlpine’s italics in the text]. What I would understand by ‘should not be allowed to stand’ is need for a full re-evaluation of the problem myelopathy. In this case, I would see such re-evaluation as including plain x-rays of the thoracic spine (if not already done and carefully reviewed), a neuro-ophthalmological examination for any subtle ophthalmic signs of MS, an autoimmune screen (systemic lupus erythematosus can present with a fluctuating/relapse remitting myelopathy and a raised CSF lgG), contact with Mr Paul Weston [senior scientific officer at the time responsible for the clinical neurophysiology at the ACH] about the availability of visually- and auditory-evoked response testing for Mrs Waller. If the total of these investigations gave no support for multifocal neurological disease, there would have been strong indication to proceed with a thoracic myelogram with repeat CSF examination.”
Dr Hallpike referred to the letter of Professor Burns dated 5 December 1979. I have set out the text of that letter above. It will be seen that part of the letter reads:
“I don’t feel inclined to do any further investigations, although visual evoked responses would be of interest.”
The trial judge found that if a visual evoked response test had been performed in about December 1979, it is likely that the test results would have been normal. If they had been normal, this would have been a strong indication to perform a myelogram, which in turn is likely to have demonstrated the presence of the tumour, which would have displaced the diagnosis of MS, in favour of the tumour being the cause of Mrs Waller’s illness.
In those circumstances, surgery is likely to have been carried out to remove the tumour at that stage.
If that had been the case, the deterioration in Mrs Waller’s condition would more than likely have been arrested, and she would have been spared the acute symptoms which developed subsequently.
It is that process of reasoning which is at the nub of the finding of negligence against Professor Burns.
The way in which the trial judge expressed the matter appears from the following passage in his reasons for judgment:
“[54] I accept the opinion of Dr Hallpike that when the 2^nd defendant saw the plaintiff in December 1979 he should as a matter of proper neurological practice in the circumstances which then existed have pursued further investigations to reach a more definite diagnosis. His opinion on this is supported by the opinions of Professor McLeod and Dr Boyce. The plaintiff’s condition was then significantly deteriorating and she appeared to be progressing towards paraplegia. There was still no evidence of any second lesion in the central nervous system but outside of the spine which would satisfy the second criterion in the Schumacher Test. There were other possible disease processes which might better explain her symptoms in accordance with criterion 6 in the Schumacher Test.
[55]In his letter of 5 December 1979, quoted above, the 2^nd defendant said, ‘I don’t feel inclined to do any further investigations although visual evoked responses would be of interest.’ Visual evoked responses (‘VERs’) were a new investigation at the time which revealed abnormalities in the visual pathways of 60-75% of persons who definitely had MS. If a VER test had been performed, and had produced abnormal results, that would have been a significant indicator of a para lesion in the optic nerves and confirmatory of MS. If any VER test results of the plaintiff were normal, it would not in itself have refuted a diagnosis of MS, but it would have thrown sufficient doubt on the diagnosis of MS to make tests for other possible causes of the symptoms more imperative. With the benefit of hindsight it is clear that if the plaintiff had undergone VER tests the results would have been normal. Professor McLeod, who practised in Sydney, had VERs performed routinely because facilities for them were readily available to him. Dr Hallpike thought they were not readily available in Adelaide in late 1979 and were only available at the Women and Children’s Hospital. However, the 2^nd defendant said in his evidence that he was ‘pretty sure’ that they were available at Flinders Medical Centre at the time. Thus there was no inhibition on carrying out such VERs from them being inaccessible.
[56]If VER tests on the plaintiff had been normal, each of Dr Hallpike, Professor McLeod and Dr Boyce said he would then have sought to have the plaintiff undergo myelography to see if that revealed any other possible cause of the symptoms. Myelography is taking plain xrays of the spinal cord after dye has been injected into it through a lumbar puncture. …I find that if myelography had been recommended to her by the 2^nd defendant in late 1979 or early 1980 that the plaintiff would have undergone it. … In this era myelograms were regularly carried out for many spinal problems, some far less serious than those of the plaintiff. In his many years of practice Dr Hallpike had never known a patient to whom he had recommended a myelogram to refuse to undergo it because of the risks of adverse consequences.
[57]As Dr Hallpike said in his second report:
‘… the hazards to the plaintiff of overlooking a tumour diagnosis by 1979 greatly exceeded any risks associated with the investigation.’
In seeking a definite diagnosis of the cause of a spinal cord lesion myelography was treated in the text books of the time as the gold standard and the highest Court of Appeal. I accept the opinion of Dr Hallpike that if a myelogram had been carried out in about December 1979 on the plaintiff it is highly likely that it would have revealed a swelling in her spinal cord caused by the epidermoid cyst. … I accept Dr Hallpike’s opinion that if a myelogram of the plaintiff in about December 1979 had revealed swelling of her spinal cord it is highly likely that a biopsy would then have been performed at that point in the spinal cord which would have revealed the nature of the epidermoid cyst. If that had been diagnosed in about early 1980, I find that it would have been surgically removed shortly afterwards. …
[58]There is no suggestion that the 2^nd defendant should have suspected on 5 December 1979 that the plaintiff’s symptoms were caused by an epidermoid cyst. From the absence of any second disseminated lesion since the onset of the condition in 1975 the reasonably competent neurologist treating the plaintiff in 1979 should have been looking for any other possible cause of the plaintiff’s spinal lesion. There was some, albeit a fairly remote, possibility that the cause could be an intramedullary tumour of some kind such as perhaps an AVM. This possibility could, and should, have been investigated by myelography as there was also some possibility that if some sort of tumour was found it might be treatable. As his subsequent correspondence with the general practitioners on Kangaroo Island showed the 2^nd defendant was never sufficiently confident of a firm diagnosis of MS such as to obviate the need to pursue other investigations of alternative, although less likely, causes of the plaintiff’s symptoms, and particularly in view of her ongoing descent towards paraplegia. On the balance of probabilities his failure in December 1979 to pursue VER tests and a myelogram were a breach of his legal duty to the plaintiff.” (my emphasis)
The trial judge went on to find that even if, contrary to the view which he had expressed, Professor Burns was not negligent in failing to arrange for a myelogram in 1979:
“[60] … On similar lines of reasoning he would have been negligent in not recommending one when he saw her in each of September 1980 and September 1981.”
He did not, however, pursue that aspect of the matter, as he held that her damages would not be any greater, whether the negligence should be dated in either 1979, 1980 or 1981.
The appeal as to the finding of negligence
The grounds of appeal advanced in support of the assertion that the trial judge erred in finding a breach of a duty of care by Professor Burns may be summarised as follows:
That the trial judge erred in finding -
·That Professor Burns was negligent in failing to pursue VER tests and the myelogram in December 1979.
·That Professor Burns was negligent in failing to recommend a myelogram in September 1980 or September 1981.
·In finding that Professor Burns was in breach of the standard of care of the reasonably competent neurologist in failing to perform a myelogram as:
oa myelogram was not indicated;
othere was no evidence of a progressive condition;
olack of evidence of a second lesion did not detract from a diagnosis of multiple sclerosis.
An additional ground of appeal was allowed by way of amendment to the notice of appeal during the course of the hearing (ground 13A). In this ground the appellant contended that the trial judge “erred in failing to give adequate reasons for his findings on neurological evidence and thereby his findings on breach of duty”.
Three neurologists gave expert evidence: Dr Hallpike and Dr Boyce on behalf of Mrs Waller, and Professor McLeod on behalf of Professor Burns and FMC.
Professor Burns also gave expert evidence in his own defence.
I have set out above, the general findings made by the trial judge as to the expert evidence, and that he preferred the evidence of Dr Hallpike where there was a conflict with others.
The trial judge observed in a footnote:
“I received some expert evidence from the 2^nd defendant de bene esse over an objection that he should not be permitted to give expert evidence because no report from him had been served on the plaintiff pursuant to Rule 38.01. I need not go into the difficult question of whether Rule 38.01 prevents a party giving expert evidence in his own cause as I reject the expert evidence of the 2^nd defendant insofar as it conflicts with that of Dr Hallpike.”
Elsewhere throughout his reasons for judgment, the trial judge specifically referred to the evidence which he preferred, which was more often than not the evidence of Dr Hallpike, on many occasions contrasting it with expert evidence which he was not prepared to accept.
During the course of his submissions, Mr Harris QC of counsel for the appellants complained:
“… His Honour accepted the opinions of Dr Hallpike where they were in conflict with those of other neurologists (including Professor Burns). However, His Honour, with respect, failed to articulate in the judgment any reasoning process by which the preference of Dr Hallpike could be demonstrated. Relevantly, the learned trial judge dealt with the expert evidence of Professor Burns in a footnote to the judgment and not otherwise.”[7]
[7] Appellant’s written outline of argument, par [43].
In my view, this complaint is not made out.
The fact that the trial judge saw fit to comment on the evidence of Professor Burns in a footnote is of no relevant significance.
The trial judge expressly found that Professor Burns was an honest witness, and he did not suggest that any of the other expert witnesses gave evidence which was other than an honest expression of their views.
In cases such as this where there is a substantial body of opinion evidence from a group of highly qualified expert witnesses, it was entirely a matter for the trial judge to evaluate the evidence as best he could, and indicate the evidence which he accepted and that which he rejected, or was otherwise not prepared to rely upon.
In some cases, a judge may be able to point to internal inconsistencies in the evidence of an expert witness, or a lack of rationality. In other cases, the trial judge may be able to point to differences in the factual hypothesis upon which an opinion has been expressed, in which case he or she would be entitled to prefer an opinion based upon the factual hypothesis which the judge was prepared to find was accurate.
In other cases, such as this case, it may not be possible to point to factors such as that. Where such factors are absent, the preference of one expert over another may come down to the trial judge’s impression as to the manner in which the witness gave his or her evidence, and whether the evidence of the witness was convincing.
When in this case the trial judge said that he found Dr Hallpike to be “… the most impressive and convincing of the neurologists who gave evidence”, it was not incumbent upon the trial judge to articulate further why or how he came to that view. Certainly, a finding that one expert was more impressive and convincing than another or others, is not a matter that would admit readily to explanation by reference to a “reasoning process”.
Remarks which I made in Rowland v Police,[8] while made in the context of a magistrate’s appeal in a criminal matter, are nonetheless apposite:
“[34] … it will often be the case that factual issues will be resolved by preferring the evidence of one witness over that of another, particularly where it comes down to a question of ‘oath against oath’. In such circumstances, it may be sufficient for a magistrate to say that he or she has preferred the evidence of a witness based on an assessment of demeanour, or because one witness was found to be more convincing than another, or because the evidence given by one witness was inherently implausible or for some other shortly stated reason. See R v Keyte per Doyle CJ:[9]
‘I do not accept that there is a need to provide a detailed explanation for the decision to prefer the evidence of one witness to another, and for the conclusion of satisfaction of guilt beyond reasonable doubt on the basis of the evidence of that witness, at least when the relevant decision rests substantially upon the impression made by the witness when giving evidence’.”
[8] (2001) 79 SASR 569 at 573.
[9] (2000) 78 SASR 68 at [81].
Once it is accepted that the trial judge did not err in preferring the evidence of Dr Hallpike, or in his explanation as to why he did so, this goes a long way towards disposing of the grounds of appeal relating to the findings as to breach of duty of care.
As the respondents contended, this was a case where Professor Burns consistently indicated a degree of uncertainty in his diagnosis. That uncertainty is reflected in a number of passages in the various letters of report which I have quoted above. I refer again to them.
Professor Burns made no firm diagnosis in his letter of 24 April 1975 to Dr Alcorn.
In his letter of 1 May 1975, he stated that “The diagnosis I think lies between a first episode of multiple sclerosis versus a transverse myelitis of post viral origin”.
In his letter of 13 June 1978, although he described the diagnosis of multiple sclerosis as “much more likely”, he stated that he could not be certain.
In his letter of 5 December 1979, he again referred to the fact that there was “no evidence of disseminated disease” (an indication of MS), and after indicating that he was not inclined to do any further investigations, he stated that “visual evoked responses would be of interest”.
He noted again in his letter of 16 September 1980 that there was still “no evidence of disseminated neurological lesions”.
In his letter of 10 September 1981, he said:
“Despite the fact that she has no neurologic abnormalities rostral to the thoracic cord has always raised slight doubts about the diagnosis …”
Pausing there, it seems to me that the proper conclusion to be drawn from what Professor Burns was saying in those passages is that the diagnosis of MS was very much a provisional diagnosis, and that the absence of a disseminated distribution of symptoms in particular, made it difficult to reach a firm diagnosis of MS.

Against that background, it was open for the trial judge to find, as he did:
“[58] … the reasonably competent neurologist treating the plaintiff in 1979 should have been looking for any other possible cause of the plaintiff’s spinal lesion.”
Clearly, from the letter of 5 December 1979, Professor Burns was aware of the availability of a VER test, which he stated “would be of interest”.
A VER test was non-invasive. Professor Burns lacked a definite diagnosis of MS at that stage, or indeed at any stage. There was ample support, not only in the evidence of Dr Hallpike but in other expert evidence, to support the trial judge’s finding that Professor Burns owed a duty to conduct further tests, more particularly a VER test in December 1979, which would more than likely have led to a myelogram and the discovery of the tumour at that stage, and that his failure to do so was a breach of his legal duty to the plaintiff.[10]
[10] Reasons [58].
I accept the respondent’s submission that the weight of the medical evidence, including that given by the medical witnesses and authoritative medical publications, supported the need to pursue further investigations at that stage.
As it was put by Dr Hallpike, in December 1979, the time had come for “the minimum clinical judgment and the maximum on tests”. Dr Boyce’s evidence was:
“Q.As far as you’re concerned, presenting with the symptoms that she did in December of 1979, would you have recommended investigations to determine the cause rather than leaving a differential diagnosis.
A.Absolutely.”
Professor Burns himself accepted in his evidence that visual evoked responses were a most important test when considering a diagnosis of MS.
The expert evidence confirmed that myelograms were the “gold standard”.
Notwithstanding the weight of evidence in favour of performing tests as of December 1979, Professor Burns did not recommend or undertake any investigations from about June 1979 and during a period of deterioration of the plaintiff’s symptoms up to September 1980 and down to September 1981.
The appellants have failed to satisfy me that there is any reason to doubt the soundness of the essential conclusions of the trial judge:
·That at least a VER test should have been carried out in December 1979.
·That knowing what is now known of the plaintiff’s condition, a VER test would have been normal.
·A normal VER test would have prompted a reasonably competent neurologist to proceed to a myelogram.
·A myelogram would have identified the swelling in the spinal cord caused by the epidermoid cyst.
·This would heave prompted a biopsy, which would have in turn revealed the presence of the cyst.
·A reasonably competent neurologist would then have recommended surgery, very likely in early 1980, to remove the cyst.
In my view, that process of reasoning was fully supported by the expert evidence which the trial judge accepted in preference to conflicting evidence.
During the course of his argument presented on behalf of the appellants, Mr Harris QC made much of the fact that an epidermoid cyst was a very rare form of tumour, and there was no known precedent for an intramedullary tumour to give rise to the pattern of symptoms experienced by Mrs Waller.
Even accepting those comments, they are, with respect, beside the point. The central question in this case was whether Professor Burns should have pursued further tests in December 1979. No light is thrown on the answer to that question, by reason of the fact that if the tests had been performed, a rare condition would have been found.
No ground has been made out by the appellants which would justify interference with that finding.
In those circumstances, it is unnecessary to deal with the appellants’ complaint that the trial judge erred in finding that even if Professor Burns was not negligent in failing to pursue a myelogram in 1979, he would have been negligent in not recommending such a test when he saw Mrs Waller in September 1980 and September 1981.
The finding as to negligence in 1979, which for the reasons I have given should, in my view, be upheld, is sufficient to dispose of the appeal on the issue of negligence.
Causation
The contentions of the appellants with respect to causation are summarised in the following grounds of appeal (as amended at the hearing):
“16.The Learned Trial Judge erred in finding that:
16.1After any removal of the cyst in or about early 1980 when the plaintiff’s disabilities thereafter would not have been any greater than they were when she was at her best during the period of spontaneous remission between 1982 and 1986, and with the removal of the cyst her disabilities would not have increased from 1986 onwards.
16.1.AThe breaches of duty which His Honour had found in 1979, 1980 and 1981 were the cause of the damage complained of by the first plaintiff in the action.
16.1.BThe epidermoid cyst would have been diagnosed in about early 1980 and that it would have been surgically removed shortly afterwards.
16.2That the first plaintiff’s claim is not merely for the loss of a chance the detection and removal of the cyst in early 1980 might have improved her subsequent condition.
16.3Had the cyst been removed in 1980 then the first plaintiff would have remained reasonably ambulant and fully continent.”
It is convenient to address ground 16.1B first.
The finding by the trial judge to which that ground relates appears in the following passage from his reasons for judgment:
“[57] … I accept the opinion of Dr Hallpike that if a myelogram had been carried out in about December 1979 on the plaintiff it is highly likely that it would have revealed a swelling in her spinal cord caused by the epidermoid cyst. Professor Jones gave similar evidence relating to what would have been likely to have been found on a myelogram in 1980, and that supports Dr Hallpike’s conclusion. However, a myelogram would have merely revealed the existence and location of swelling of the spinal cord, but it would not have been diagnostic of the cause of swelling. I accept Dr Hallpike’s opinion that if a myelogram of the plaintiff in about December 1979 had revealed swelling of her spinal cord it is highly likely that a biopsy would then have been performed at that point in the spinal cord which would have revealed the nature of the epidermoid cyst. If that had been diagnosed in about early 1980, I find that it would have been surgically removed shortly afterwards. I do not accept any view of Mr North to the contrary. He conceded that a progressive worsening of the symptoms, as was the plaintiff’s case, would make it more likely that surgery would have been recommended. As to what such surgery in early 1980 would have meant for the plaintiff will be dealt with later in these reasons.”
Dr Hallpike was asked directly in the course of his evidence in chief whether a biopsy performed in 1979 would have been likely to have identified the tumour. He said that it would.
He went on to say in his evidence, that the next step, once the tumour had been identified by biopsy, would be consultation with a neurosurgeon. He said that he was quite sure that a recommendation would have followed that the lesion be “explored”.
In challenging the trial judge’s findings based on that evidence, the appellants pointed to the fact that the only neurosurgeon who gave evidence in the case, and who was in practice at the relevant time, was Mr North.[11]
[11] Appellant’s outline, par 75.
Relevantly, Mr North’s evidence was that:
“Between 1975 and 1988, the surgical philosophy for managing such a patient with a swelling within the spinal cord would have been conservative, with periodic review.”
Insofar as Mr North’s view was that surgical intervention would not have been likely, in the passage which I have quoted above from his reasons for judgment, the trial judge clearly was not prepared to accept that evidence, preferring the opinion of Dr Hallpike.[12]
[12] The respondents submitted that the Royal Adelaide Hospital database (exhibit D1) illustrated that in most cases around 1979 myelograms were associated with surgery. The trial judge did not comment on that database, and I would be unwilling to venture a conclusion as to what it proves in that respect without being taken to evidence confirming the suggested interpretation.
The appellants’ contentions on this issue fly in the face of the fact that, as the respondents point out,[13] the point of a myelogram was to diagnose and determine if the condition warranted surgical exploration.
[13] Written submissions, par 2.4.
As to ground 16.2, in my view, the trial judge did not err in rejecting the contention which was put to him at the trial, that all that the plaintiff had lost, at best, was a chance that if the tumour had been found and removed in early 1980, this might have improved her subsequent condition.
Whether or not the plaintiffs’ case came down to the mere loss of a chance of improvement in her condition, or something more positive than that, was a matter involving an assessment of the evidence as to the likely consequences of removal of the tumour at that stage.
In his reasons for judgment, the trial judge addressed this issue directly. After quoting a passage from the evidence of Dr Hallpike, the trial judge concluded:
“[71] Although it was not directly addressed in the medical evidence, as a matter of commonsense I infer, and find, that after any removal of the cyst in about early 1980 the plaintiff’s disabilities thereafter would not have been any greater than they were when she was at her best during the period of spontaneous remission between 1982 and 1986, and with the removal of the cyst her disabilities would not have increased from 1986 onwards. She has proved this on the balance of probabilities and thus her claim is not merely for the loss of a chance that detection and removal of the cyst in early 1980 might have improved her subsequent condition. This means that her damages are to be assessed on the basis that in any event she would have had some problems with her legs and have walked with some limp, but she would have remained reasonably ambulant and fully continent. While she would not have been able to run and play sport, and have been restricted in more strenuous activities, she would have been able to perform almost all of her usual household duties and to have engaged in a wide range of social and recreational activities.” (my emphasis)
Although the trial judge introduces that finding with the expression “although it was not directly addressed in the medical evidence”, the evidence of Dr Hallpike, which he set out before that passage, was to the effect that the more disabled the patient is before the operation, the poorer the outlook for recovery. He went on to say that if Mrs Waller was “independently ambulant” before the operation (which was the case), “the outcome … would have been very much more favourable on any statistical basis than the outcome when operated on when she was no longer able to stand or walk independently”.
The trial judge also referred to the evidence of Dr Hallpike that even intervention as late as 1988 had prospects of considerable improvement. Dr Hallpike’s words were that he would have been “… quite optimistic of substantial recovery, very significant recovery functionally”.
In my view, the trial judge was right to refuse to characterise the case as one where the award should be limited to damages for a lost chance or lost opportunity.[14]
[14] See the interesting discussion by Smith AJA in Gavalas v Singh [2001] 3 VR 404 at 416 et seq, and the decision of the Court of Appeal of New South Wales in Rufo v Hooking [2004] NSWCA 391.
It will always be a question of degree of probability as to whether or not a given result should be so characterised, or whether an affirmative finding that a particular loss is attributable to a negligent act should be made. Given the trial judge’s findings, it is unnecessary to deal with the difficult category of cases where the relevant probability is less than 50 per cent.
In this case, once the judge correctly reasoned towards a conclusion that more likely than not, absent the negligence of Professor Burns, the tumour would have been discovered and removed in early 1980 and that this would have had the likely consequence that the later deterioration in Mrs Waller’s condition would have been avoided, he was entitled to award damages for the proven consequences of the failure to remove it at that stage.
The findings made with respect to causation were open on the evidence and were not findings which should be disturbed on appeal.
I would dismiss what have been described as the “causation” arguments, being the matters raised in ground 16 of the notice of appeal.
As for the appeal and cross-appeal with respect to the quantum of damages, I agree with the Chief Justice that the cross-appeal should be allowed, for the purpose of increasing the amount awarded for future economic loss, to $100,000. Save for that adjustment, the appeal and cross-appeal with respect to damages should be dismissed. I agree with the reasons of the Chief Justice as to those matters.
In the result, on all issues, I would dismiss the appeal and cross-appeal, save that the cross-appeal should be allowed for the purpose of increasing the amount awarded in favour of the First Plaintiff to $3,252,000.
VANSTONE J: I agree with the orders proposed in respect of the appeals relating to liability and damages by Perry J and the Chief Justice respectively, and with the reasons each has given.