Gavalas v Singh
[2001] VSCA 23
•22 March 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8270 of 1998
| VASSILI GAVALAS | |
| Appellant | |
| v. | |
| DR ANIL SINGH | Respondent |
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JUDGES: | ORMISTON and CALLAWAY, JJ.A. and SMITH, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 20 and 21 November 2000 | |
DATE OF JUDGMENT: | 22 March 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 23 | |
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MEDICAL NEGLIGENCE – Failure to diagnose brain tumour – Lost chance or opportunity of better outcome – Issues not raised at trial – Compensation for lost chance unreasonably low.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J. Ruskin, Q.C. and | The Law Offices of Zaparas and Dandanis |
| For the Respondent | Mr R. Gorton, Q.C. and Mr J. Constable | John W. Ball & Sons |
ORMISTON, J.A.:
The facts and circumstances upon which the appellant relies to show that the award of damages in his favour was inadequate are sufficiently set out in the judgment of Smith, A.J.A. I agree in substance with what his Honour there concludes, but I would prefer to express my reasons in the following way.
The basis or premise for determining this appeal is that the learned County Court judge found the respondent liable in negligence and the respondent has abandoned any appeal against liability. In that sense the respondent must be taken as accepting that he breached his duty of care as a medical practitioner and that breach resulted in damage. The act of negligence was broadly that he failed to take proper or adequate steps to diagnose further or refer for further opinion the appellant’s complaints which by 25 October 1990 were sufficiently serious as to require Dr Singh to take further steps of that kind.
Because the judge refused on the evidence to find any earlier act of negligence on the part of the respondent, the established act of negligence took place only some 10½ weeks before the respondent in fact decided on 6 January 1991 that some further steps should be taken. That decision led to the appellant’s undergoing the operation on 10 January 1991 which, although as successful as might fairly be expected having regard to the appellant’s condition and the size of the brain tumour at that time, was nevertheless not as successful, as I would understand the judge’s findings, as an operation might have been if conducted shortly after 25 October 1990.
Undoubtedly the appellant suffered damage in so far as he continued to suffer, without treatment, the headaches, left-sided weakness and other related symptoms for the 10½ weeks before the actual operation took place, but the real question on this appeal is whether the damage was more extensive and whether the judge failed to assess all the damages properly. Thus, at the least (which was clearly the subject of a favourable finding in the judgment) the plaintiff was “entitled to reasonable damages to compensate him for the pain and suffering … he was obliged to endure” for that intermediate period of 10½ weeks. Unfortunately the judge did not put a figure on the damages that he awarded for that element, assuming that some other element made up the total damages ultimately assessed on the following page of the judgment at $30,000. On the most generous of assessments, 10½ weeks of headaches and related disabilities ought not to attract a sum as great as $30,000: perhaps at the highest damages for that period would be in the range of $5,000 to $10,000.
It seems, moreover, that the learned judge accepted that there was some further damage which he characterised as the loss of a chance of better or more timely treatment of the tumour. Thus he had concluded that “there was at least a chance of a more favourable outcome of an operation at the end of October 1990 than the result following the operation on 10 January 1991”, which chance, though not high, was “not so low as to be regarded as speculative”. Before viewing the relevant circumstances in this way he relied on principles most commonly characterised as applicable to the “loss of a chance”. As we were told during argument, this had never been a basis directly asserted in the appellant’s case for that case had been far wider and more all embracing in that it sought to damn the respondent doctor as negligent for a period of at least two years.[1]
[1]At the end of the day the concept of loss of a chance might still have been relevant to his claim although not directly relied on by the appellant in argument before the trial judge.
Although “loss of a chance” had not been expressly relied upon as a principle, undoubtedly the argument took place upon the basis that the appellant was worse off because he might have had a far more successful operation if the tumour had been diagnosed much earlier. It appears that the issue only arose in the course of discussion by the judge with respondent’s counsel who was asserting equally boldly that there had never been any failure to diagnose properly, even to the extent of invoking his client to assert in evidence that if the appellant had complained of any
such symptoms, he, the respondent, would have been negligent not to have referred him to a specialist for immediate treatment. However, when it arose in argument, although the discussion was but short, senior counsel then appearing for the respondent asserted that there could be no claim made based on loss of a chance. He did not, as I would understand it, assert that such a claim had not been part of the appellant’s case, either as pleaded or as conducted at the trial, but he sought only to assert that it was a wrong characterisation of the circumstances. Perhaps little more need have been said since it was not, at least in any direct form, part of the appellant’s own case. The difficulty is that the judge saw it as the most satisfactory way of analysing the primary consequence of the respondent’s failure to diagnose in October 1990, and that chance was characterised by him as the possibility or chance of “complete removal” and that degree of success clearly had become impossible by the time of the January operation. His Honour’s findings as to the evidence of the principal expert witnesses suggests, even if they do not make clear, that he preferred the opinion given by Mr Cummins that the tumour “could have expanded two centimetres in the last three or four months prior to detection”. The period of three to four months poses a difficulty in the sense that it appears to start at least six weeks before the relevant period, but I believe what the judge was intending to convey was that there was, or could well have been, a very significant increase in the size of the tumour and in the speed of its increase over the period from October to January, which was of a kind which made the operation’s chance of success significantly less.
It is curious that it was the respondent’s expert’s views, at least as expressed at one stage of his evidence, which the judge accepted rather than those of the appellant’s expert, but that is just one of the quirks of a forensic contest in which both sides’ cases, and the evidence they led, was essentially on an all or nothing basis. At any rate the judge went on to say that, if the tumour had been detected “at say the size of three centimetres”, both specialists agreed that it might have been possible for it to be excised completely, eliminating any possible regrowth and the need for further operations. It might also have removed the possibility of the unfortunate other consequences such as incontinence and cognitive problems from which the appellant now suffers. As the judge said, the nearer the tumour was to five centimetres in October 1990, then the less the prospects of an entirely good result became, but “nevertheless in my judgment the results of an operation at the end of October upon the tumour, if it were significantly smaller than five centimetres, would have been more beneficial to the [appellant] and there was a chance that this was the position”. His Honour’s significant conclusion was that the appellant lost that chance through the respondent’s negligence. Then in merely a single paragraph he sought to assess the consequential damages. In assessing those damages he first pointed out, as noted above, the headaches and related complaints which the appellant had over the 9 (or more accurately, 10½) weeks to the time of actual operation. But he then concluded that, “taking into account the loss of the chance of a more favourable outcome from an earlier operation and the prolongation of the intractable headaches, left-sided weakness and dragging of the plaintiff’s left leg which I find was occurring during the last nine weeks (sic) and could have been avoided by an operation at the end of October 1990”, he assessed the damages in total at $30,000, but without further detail or analysis.
No doubt, when the learned judge said that there was a prolongation of headaches and the like, it is probable that he was referring to continued pain and suffering beyond the last 10½ weeks. Thus it would seem that, to that extent, he must also have taken into account “the loss of the chance of a more favourable outcome”, but upon what basis and how he estimated the remaining $20,000 to $25,000 (or whatever the additional damages were) was not otherwise explained. If the judge had confined his award for the ensuing period after the operation to pain and suffering upon the basis that there was a chance, slight but more than speculative, that an earlier operation might have avoided some at least of the worst aspects of that subsequent pain and suffering, then it might have been acceptable to reach a conclusion as to damages for that non-economic loss as low as $20,000 to $25,000. The award would have been very low in the circumstances of the case, but
it might have been justified by reference to the likelihood that the judge was holding that the chance was indeed very slight, only a little greater than speculative.
Whether or not such an award of damages solely for pain and suffering could have been justified is presently irrelevant, for the claim made, and only partly challenged (if liability were made out), was that the appellant was not merely continuing to suffer more severe headaches and the like in the period after the operation than he otherwise would have to suffer, but that had had an effect economically both from the cost of further treatment that he would be likely to have to undergo (more likely than not two operations and other related treatment) and also from the likely severe consequences for his income-earning capacity. Indeed, the judge had adverted to this earlier in his judgment, when describing the pecuniary loss claim as including an element which was “virtually common ground”, by saying that, if the appellant’s claim were successful, he would be entitled to past loss of income totalling $15,654 because of his demotion to technical assistant. His Honour then referred to the claim for a potential loss of capacity to earn in the future as ranging from $400,000 to $480,000 in round figures, taking into account contingencies, together with superannuation benefits of $46,000 to $65,000.
The learned judge was therefore well aware of the substantial pecuniary loss claim. So it would seem that the claim for the loss of chance of a more favourable outcome, if the appellant was diagnosed in October, included a claim for the loss of an opportunity to continue to earn his former income and for the loss of superannuation benefits, to the extent that there was a loss of the chance in question. At the very least the judge should have explained why he thought only pain and suffering was caused and why the loss of chance ought not to be reflected in a partially successful claim for loss of past income and future economic loss. However small that chance might be, even if it was no higher than five percentum, the hypothetical better outcome, which might otherwise have been obtained if the respondent had not been negligent, would also have given the appellant a better chance of retaining his job and of obtaining employment in the future, certainly far better than the dismal prospects he presently faces.
In the circumstances it is difficult to believe that the learned judge, in what was otherwise a detailed and carefully reasoned judgment, failed to take account of the virtually undisputed calculations as to the potential economic loss suffered by the appellant. Nevertheless his Honour’s reasoning at this critical stage of the judgment makes no reference to the appellant’s loss of earning capacity, or the loss of a chance that that might continue substantially undiminished. His Honour’s specific reference to the “prolongation” of the headaches etc. in this final global assessment of damages of $30,000 suggests that he was making only an assessment of non-economic loss. If he were not so confining the award, however, the damages would have been manifestly inadequate, having regard to the figures set out above.
Consequently, in my opinion, the learned judge failed to make any award in respect of that economic loss, and that failure was for no reason which was advanced before this Court and for no reason which can otherwise be ascribed. Whatever be the chance, that should have led, together with the non-economic loss element, to a far higher award than $30,000, so that that award was so low as to be presently indefensible. The absence of reasoning suggests that economic loss may well have been overlooked at this last stage of the judgment but, whether that be so or not, the damages awarded bore no reasonable proportion to the value of the chance lost, even if one were to put that chance as low as, say, five or ten percentum. For that reason I consider the damages awarded were manifestly inadequate, such that they will have to be reassessed.
For the purpose of reassessing damages it is necessary to have clear how the “loss of a chance” should here be approached. It is possible that the evidence may vary from that so far heard, because it would not be fair to restrict the evidence to that called at the trial inasmuch as at least one party was under a misapprehension as to the nature of the “alternative” case. As things stand, however, there would, at the time the cause of action arose, have been a reasonable chance of complete success for the operation and of virtually complete recovery, without any real risk of adverse
financial consequences for the appellant, if the operation had then been carried out. It was not, however, a certain outcome, partly because operations of that kind have uncertain consequences and partly, and more importantly, because the severity of the appellant’s condition in October 1990 is not known and could not now be known, largely because of the respondent’s negligence. Damages for future economic loss (and for future non-economic loss also) always involve a degree of estimation, in calculating the plaintiff’s loss, of the chance of a relatively normal future life. Those circumstances can never be known for certain because the act of negligence has altered the plaintiff’s life irrevocably, or so it may ordinarily be assumed, even if the change be slight and not long-lasting. Here the same exercise must be carried out but with even greater uncertainties than usual. Not only is the appellant’s future life uncertain but his actual condition at the time of the negligent act is uncertain. Nevertheless he did suffer some damage at the time; that is for present purposes no longer in dispute, and so the only issue is the extent of the likelihood that his predicted future life was also affected.
The chance the appellant lost is that which would have resulted from a successful operation in October 1990. The uncertainty is primarily as to how successful that operation would have been having regard to what is known of the appellant’s condition at that time. The learned judge said that chance was more than “speculative”, so it is necessary that that loss of a chance be estimated having regard also to the economic effects on the appellant, both as to the cost of treatment and as to the loss of income-earning capacity. There are so many factors in the calculation of damages of the kind here sought which were not the subject of specific findings and which to a degree depend upon the judge’s assessment of the witnesses, especially the appellant, that I do not think it appropriate for this Court to go through the exercise of reassessing those damages, howsoever convenient it might be in this or in other cases. The matter of the assessment of damages as a whole must
be remitted to the trial judge for reconsideration in the light of the reasons given by this Court. The appeal must be allowed but solely for that purpose.
CALLAWAY, J.A.:
No advanced system of law could now deny recovery where late diagnosis, in breach of duty to the patient, appreciably reduces the prospects of success of an operation. The course of the trial makes this an unsuitable vehicle for considering why and how that is so in our system of law. Doubtless the very experienced senior counsel who represented the respondent below realized that there was nothing to be gained for his client by such an analysis and that it was better advocacy simply to deny negligence altogether. There being no doubt that, for one reason or another, the law permits recovery in such circumstances, all that justice requires in this instance is a reassessment of damages along the lines already essayed. It is clear, for the reasons the other members of the Court give[2], that the damages awarded were inadequate. The chance the value of which has to be assessed (as best the judge may) is the chance of a better outcome, taking into account all the ways in which that outcome would have affected the appellant, including diminution of pain and suffering and loss of enjoyment of life and reduction of economic loss.
[2]I respectfully prefer Ormiston, J.A.'s estimate of $5,000 to $10,000 at [3] to Smith, A.J.A.'s $15,000 at fn. 67.
I agree with Smith, A.J.A. that the appellant's other grounds of appeal fail.
SMITH, A.J.A.:
Original proceedings
By writ filed 28 October 1996, the plaintiff sought damages from the defendant Doctor Singh alleging negligence in his treatment of the plaintiff resulting in a failure to make a timely diagnosis of a brain tumour suffered by the plaintiff.
The plaintiff was born on 4 December 1959 and at the date of the hearing was aged approximately 37 years. The action came on for trial at the County Court in Melbourne on 20 October 1998. The hearing occupied 18 days concluding on 13 November 1998. Both parties were represented by senior counsel. On 17 December 1998 the learned trial judge delivered judgment finding, amongst other things, that the defendant was negligent in failing to diagnose the plaintiff's brain tumour by 25 October 1990 and that the plaintiff had lost the chance of a more favourable outcome from an operation to remove the tumour at that time. Damages were assessed at $30,000.
The appeals
The plaintiff by notice of appeal dated 23 December 1998 challenged the judgment on the following grounds:-
1.The learned trial judge's award of damages was unreasonably low in the circumstances.
2.The learned trial judge erred in awarding a sum by way of damages which was not reasonably open to him, having regard to his findings of fact.
3.The learned trial judge erred in that he failed to make findings of fact as to the true nature and extent of the injury, loss and damage caused to the Appellant as a result of the negligence of the Respondent, as he found it.
4.The learned trail judge should have found as a fact that the negligence of the Respondent probably prevented the Appellant's tumour being removed when it was 3cms, with greatly improved results, and should have awarded damages accordingly.
5.The learned trial judge, having found that the Appellant suffered from intermittent headaches on at least 8th March, 1989 and 14th march, 1989 and complained of same to the Respondent, and having regard to the concession of the Respondent that had the Appellant complained on two such occasions, he should have referred the Appellant for a CT Scan, ought to have found negligence against the Respondent in failing to refer the Appellant for the CT Scan at that time, and should have awarded damages accordingly.
6.The learned trial judge erred in that, if it was appropriate to find that the Appellant suffered damage by reason of a loss of chance, he should have included in the damages so awarded and consequent upon the injuries which might have been avoided, sums representing the loss of chance to have avoided:
(a)pecuniary loss, which the learned trial judge should have assessed;
(b)medical expenses, which the learned trial judge should have assessed;
(c)requirement for further operative treatment, which the learned trial judge should have included in any award of general damages;
(d)cost of future operative treatment, which the learned trial judge should have assessed.
7.If it was appropriate to award the Appellant damages for the loss of chance, the learned trial judge should have:
(a)made findings of fact as to each head of damage sustained by the Appellant which was adversely affected the loss of chance;
(b)made a monetary award under each head of damage so adversely affected by such loss of chance.
The defendant filed a Notice of Cross Appeal dated 24 December 1998 but at the hearing of the appeals indicated that he would not pursue his cross-appeal. The defendant now accepts that it was open to his Honour to find a breach of duty as at 25 October 1990 in failing to detect the tumour and that as a consequence the plaintiff suffered severe symptoms from late October to early January, when the tumour was diagnosed, symptoms which he would not have suffered otherwise. He seeks, however, to meet the arguments advanced for the appellant and also to challenge the appellant's entitlement in law to damages for the loss of a chance although if successful in that argument, he does not wish to have the decision disturbed; the defendant concedes damages were recoverable for the pain and suffering and loss of enjoyment of life in the period from 25 October 1990 until the tumour removal in January 1991.
Substance of cases put at trial – extreme positions
Both parties took what might be described as extreme positions. The plaintiff's case, as put below, was that he had attended the defendant on a number of occasions from 1988 onwards seeking treatment initially for headaches and later, for headaches and left sided weakness. His case was that the defendant should have arranged for the plaintiff to undergo diagnostic treatment such as a CT scan by late 1989 at the latest but failed to do so.
On 7 January 1991 the defendant referred the plaintiff to the Box Hill hospital for the purpose of such a scan. It was carried out on 10 January 1991. The scan showed the plaintiff was suffering from a brain tumour. He was there and then admitted to the Alfred Hospital and on 14 January 1991 underwent surgery. He subsequently underwent further surgery as the original tumour could not be entirely removed and had grown again. His case was that further surgery would be required. The plaintiff alleged that, following the operation in January 1991, he was left with serious disabilities as a result of the defendant's negligence and sought damages for expenses, economic loss and pain and suffering and loss of enjoyment of life for both the past and the future.
The defendant on the other hand took the position that the plaintiff had not regularly attended the defendant and in fact only attended him on a few occasions, that it was not until 7 January 1991 that there was any need for further investigation when it appeared that he had headaches and a left sided weakness and that there was no negligence on the part of the defendant. Further it was put that, if there was negligence, there was no causal connection between any such negligence and the disabilities with which the plaintiff was left following the operation.
The trial judge's reasons
The learned trial judge did not accept either case. He rejected much of the evidence proffered by the plaintiff to support his case that he had attended Dr. Singh through 1988 to 1999 and in the course of those attendances brought to his attention the problem of the recurrent headaches and left sided weakness. His Honour found, however, that by 25 October 1990 the defendant had received from the plaintiff a series of complaints of recurrent headaches increasing in intensity and, at that stage, the headaches were accompanied by complaints of left sided weakness. He concluded that the defendant, in the light of this history, should have been alerted to the fact that the plaintiff was suffering from more than tension headaches and should have had further investigations conducted. He found that the defendant's diagnosis was hampered by the fact that the defendant had failed to take proper history notes at each consultation. He found that if the defendant had then referred the plaintiff for neurological examination by a specialist or simply sought a CT scan himself, as he ultimately did on 7 January 1991, the tumour would have been diagnosed and operated on at that time.
In assessing damages, a major issue for consideration was whether and to what extent a better result would have been achieved if there had been an operation on or shortly after 25 October 1990 rather than 14 January when the operation in fact took place. His Honour in his reasons referred to the evidence of the two experts called by the parties - Mr Siu for the plaintiff and Mr Cummins for the defendant. The tumour was 5cm in diameter when removed. His Honour noted that the experts agreed that, assuming the tumour to have been about the same size at both dates, the period of time that had elapsed would have made no difference in the outcome. He noted, however, that the experts agreed that the outcome of the operation would have been much better if the tumour had been diagnosed when it measured three centimetres[3]. Neither, however, was able to say when in point of time the tumour would have reached that size. His Honour noted, in somewhat critical terms, that:
[3]Appeal Book D42.
“Mr Cummins was even reluctant to concede that the detection of the tumour in late October 1990 would have helped the plaintiff in respect of the earlier termination by operation of the intractable headaches.”
He went on to say that both agreed that the smaller the tumour when detected the better the anticipated outcome of operative removal. He said:
“At 3 centimetres the chance of complete removal would be quite high and secondly the duration of the retraction of the brain would be less with less residual damage.”
His Honour noted that Mr Cummins considered a less heavy retraction of the brain was more significant in achieving a favourable outcome than the duration of the retraction. He also said that with a tumour of 2.5 centimetres to 3 centimetres, Mr Siu would have been able to operate down the midline between the two hemispheres implying a more beneficial result. On operating it was found that there were enlarged ventricles indicating blockage of cerebrospinal fluid and that this was of long standing – the view of both neuro-surgeons. His Honour appeared to accept Mr Cummins evidence that the blockage may depend upon the location of the tumour rather than its size. His Honour then made a critical finding[4]:
[4]Appeal Book D 43.
“It is not easy to reconcile Mr Cummins evidence at T1372 that the tumour could have expanded 2 centimetres in the last three or four months prior to detection with his view that it would not have ‘changed greatly in size between October and at the time of operation, those three months’ . . . The first mentioned statement is more consistent with his earlier evidence as to the development of a cyst and I prefer it.”
His Honour then went on to his conclusions identifying the loss caused by the defendant's negligence stating[5]:
[5]Appeal Book D 43-4.
“Accordingly I conclude that there was at least a chance of a more favourable outcome of an operation at the end of October 1990 than the result following the operation on 10 January 1991. This chance was not high but ‘not so low as to be regarded as speculative (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 643 and Norris v Blake (1997) 41 NSWLR 49 at 66; see also Chaplin v Hicks [1911] 2 K.B. 786 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 350).
Accepting Mr Cummins's evidence that if the tumour ‘develops a cyst it will grow quickly’ there exists a possibility that the tumour may have been significantly smaller in October 1990 and operative removal at that time more beneficial to the plaintiff. If a tumour had been detected at say the size of 3 centimetres it was common ground between the specialist that it may have been able to be excised completely which would eliminate any regrowth and any consequent need for further operations. In addition the tumour may have been removed without the other consequences such as epilepsy, incontinence, and cognitive problems from which the plaintiff is now suffering. The nearer the size of the tumour to 5 centimetres of course the less the prospects of such a good result but nevertheless in my judgment the results of an operation at the end of October on the tumour, if it were significantly smaller than 5 centimetres, would have been more beneficial to the plaintiff and there was a chance that this was the position. The plaintiff has lost that chance through the negligence of the defendant.”
His Honour then referred to the assessment of damages commencing with the pain, suffering and loss of enjoyment of life associated with the period from 25 October 1989 to 10 January 1991. He said[6]:
“In addition I find that the plaintiff did suffer blinding headaches during those 9 weeks and he became very ill while putting on a brave front because he was convinced by the common diagnosis of both the defendant and Mr Wilson of stress headaches that he should stop complaining about his condition. There was no challenge by the defence to the evidence that the plaintiff was very ill during this period. He is entitled to reasonable damages to compensate him for the pain and suffering both physical and mental and loss of enjoyment of life he was obliged to endure.”
His Honour then made a global assessment of damages for the “9 week” pain and suffering and the lost chance.
“Taking into account the loss of the chance of a more favourable outcome from an earlier operation and the prolongation of the intractable headaches, left sided weakness and dragging of the plaintiff's left leg which I find was occurring during the last 9 weeks and could have been avoided by an operation at the end of October 1990, I assess the plaintiff's damages at $30,000.”
It should be noted that the period was at least 10 weeks not 9 weeks.
[6]Appeal Book D44.
The plaintiff had not in the course of the hearing expressly articulated his case on the basis of a loss of such a chance. The case as pleaded, however, included as a particular of injury, loss and damage suffered the following:
“(c)being deprived of the chance to have the said tumour completely eradicated.”
The defendant in his defence simply denied the relevant paragraph of the plaintiff's pleading. He did not plead that as a matter of law damages were not recoverable for loss of a chance of the kind pleaded. In the course of final submissions, however, his Honour raised with counsel for the defendant the question whether, accepting the argument being put by the defendant, the plaintiff was nonetheless entitled to compensation for the loss of the chance of a better outcome. Counsel for the defendant replied, in substance, that it was not a lost chance case and that there was no negligence. Counsel did not submit that such a claim was not open in law. Thus, his Honour alerted the defendant to the possibility that compensation might be awarded on that basis but the issue was not taken any further.
Arguments of the parties
The appellant advanced several arguments in support of the grounds of appeal the essence of which may be summarised as follows:
(a)That on the evidence as found by his Honour he should have found that the defendant had been negligent in 1989, in particular on the occasion when he gave an injection for severe headaches in late 1989. It was put that at that point he should have taken steps to have the matter investigated further. If that be accepted, the appellant submits that his Honour should have awarded damages on the basis that that negligence caused the subsequent disabilities. (Ground 5)
(b)(i) Alternatively, accepting his Honour's ruling that the respondent was not negligent until 25 October 1990, on the basis of his findings, the proper conclusion was that on the balance of probabilities the tumour was not more than 3 centimetres in diameter at that time and, therefore, on the balance of probabilities, the negligence in failing to further investigate the matter caused the ultimate disabilities. (Ground 4)
(ii)Alternatively to (a), the negligence as at 25 October 1990 resulted in the failure to reduce the risks associated with the plaintiff's condition and this failure to reduce the risks substantially contributed to the disabilities that emerged following the operation. Therefore, the negligence caused those disabilities. (Ground 4)
(c)Alternatively to the above, accepting his Honour's finding of negligence as and from 25 October 1990 resulting in the loss of a chance of a better outcome, the damages awarded were grossly inadequate and his Honour erred in his assessment of those damages. (Grounds 1, 2, 3, 6 & 7)
As noted above, the respondent while not wishing to have the judgement set aside, sought to meet the appellant's appeal by arguing that the appellant was not in law entitled to damages for a lost chance. Counsel, for the respondent relied upon statements made in cases such as Chappel v Hart[7] and Naxakis v Western General Hospital & Anor[8] questioning the availability of damages for a lost chance in medical negligence cases. Counsel submitted that it was not open in law for the learned trial judge to award damages for the loss of a chance of a better result. As noted above the point of law now raised was not pleaded nor was it argued below. I note that the High Court judgment in Chappel v Hart was handed down on 2 September 1998 approximately seven weeks before the commencement of the hearing below. Counsel for the respondent did not seek leave to amend the pleadings. On the other hand, apart from submitting that this case was not an appropriate vehicle to resolve the question, counsel for the appellant did not argue that the respondent's argument should not be considered because it was not put below.
[7](1998) 195 CLR 232.
[8](1998) 197 CLR 269.
Arguments not put below
It should be noted, also, that the argument put by the appellant referred to above in para 27(b)(ii) of the previous paragraph was also an argument not put at the trial below[9]. It is an argument that seeks to address difficulties in proving causation by at least enabling the plaintiff to float a case on causation by establishing that the negligence of the defendant had increased the risks associated with the plaintiff's condition or had failed to reduce the risks associated with the plaintiff's condition and so substantially contributed to the condition of the plaintiff that emerged following the operation. Putting this argument the appellant relied on a line of authority commencing with McGhee v National Coal Board[10], including Burkholtz v Gilbertson, P. R. J. Gilbertson Pty Ltd[11], Chappel v Hart[12] and Naxakis[13]. In this instance, counsel for the respondent participated in the debate before this court on the questions raised by this approach to causation but did not submit that the court should not entertain the argument.
[9]I query also whether there is any ground of appeal.
[10][1972] 3 All ER 1008.
[11](1985) 38 SASR 121.
[12]above.
[13]above.
The failure of the parties to submit that the court should not entertain these arguments does not, in my view, require this court to rule upon them if, in accordance with long established authority, it would not be appropriate for this court to do so. That issue has been considered in a number of reported and unreported appellate decisions in recent years.
As a general rule it is unusual to allow an appellant or a respondent to raise on appeal points not taken at the trial. There are fundamental policy considerations that underlie that approach. In Coulton v Holcombe[14], the majority[15] stated:
[14](1986) 162 CLR 1.
[15]Gibbs, C.J., Wilson, Brennan, Dawson, JJ., at p. 7.
“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so, the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issue so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards. See Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; Bloemen v The Commonwealth (1975) 49 ALJR 219. “
A little later in the same reasons for judgment, their Honours cited with approval the comment made in University of Woollongong v Metwally[16] that:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
Their Honours also quoted a summary of the issues of public interest involved from the judgment of the Court of Appeal in Coulton v Holcombe:
“The finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time of the Appeal Court.[17]”
[16](1985) 59 ALJR 481, at 483.
[17]See, generally, also WaterBoard v Moustakas 180 CLR 491; Geelong Building Society v Encel [1996] 1 VR 594; Stubbe v Jensen [1997] 2 VR 439; Masters v McCubbery [1996] 1 VR 635.
In the present case, as noted above, the parties took extreme positions at the trial. Neither specifically addressed the learned trial judge on the alternative of a claim by the plaintiff for damages for the loss of a chance but both parties were aware that that was a live issue and appeared to proceed on the basis that it could remain so. The trial was conducted on that basis without being specifically addressed by them[18]. As to causation, the plaintiff did not present his case below on the basis that a causal link could be established by relying on an argument that the negligence had increased the risk of the unsatisfactory outcome or failed to decrease that risk. It could not be said that the parties had proceeded on the basis that that line of reasoning was open.
[18]cf Ajax Cooke P/L v Chee Wang unreported, Court of Appeal, 18 September 1996.
If the respondent in the hearing below had pleaded that the loss of chance claim was not open in law or had otherwise managed to raise that argument as a live issue, the plaintiff would have had choices open to him. Apart from arguing to the contrary, he could have presented his causation case on the alternative basis of increase of risk or failure to decrease risk. If that had occurred, it is likely that both parties would have focused more on the evidence relevant to that analysis resulting in additional evidence. In addition, if the respondent below had argued as a matter of law that the loss of chance claim was not open, the plaintiff would have had the opportunity to focus further efforts on establishing a causal connection based upon a traditional approach, as it was called during this hearing, or the risk approach. He might also have pleaded his case in contract.
Similarly, if, in any event, the plaintiff had as part of his case presented his case on the causation question on the basis of the negligence increasing the risk or failing to decrease the risk of an unsatisfactory outcome, it is likely that both parties would have adduced more evidence relevant to that issue. At the very least the respondent should have had the opportunity to do so.
Both issues would also have been highly relevant to the parties in their consideration of their prospects of success and whether to make any offer of compromise[19]. Why then did neither the appellant or the respondent seek to argue that these issues could not be canvassed in this appeal? One explanation may be that counsel for the respondent, alive to the real possibility that the appeal might be allowed, saw that he might prevent any reassessment of damages if he could persuade the court that damages for loss of a chance was not available in law. Further, counsel for the appellant, faced with that possibility may have sought to protect his client by raising the alternative causation approach.
[19]Geelong Building Society v Encel [1996] 1 VR 594, 607.
If the issues raised affected only the question of whether the judgment below should be set aside I would have no hesitation in ruling that the parties' arguments should not be entertained.
It is necessary, however, for me to briefly address the question as to whether a claim for damages for loss of a chance is open in medical negligence cases on the state of current authorities in the event that the Court decides that the matter should be returned to the County Court for the reassessment of damages; for if such a claim is not legally open, the matter should not be returned (unless perhaps on terms permitting the plaintiff to re-open the issue of causation.)
Claim for lost chance – open in law?
Prior to the statements in Chappel v Hart[20] and Naxakis[21] to which reference was made by the respondent, it had been well established in Australia for many years, that damages could be awarded for loss in the form of a lost opportunity[22] in claims for breach of contract and in tort. We were referred, however, to the dicta in authorities that have raised a debate as to the appropriateness of the availability of damages for lost chance or lost opportunity losses in medical negligence cases, notably Chappel v Hart[23] and Naxakis[24] and Hotson v East Berkshire Health Authority[25]. The discussion in the dicta in those cases and the references in them to a similar debate in Canada and America indicate that the right to claim damages for such losses is under challenge[26]. There is judicial support for the two extreme positions but no binding authority denying the entitlement to compensation for such a loss in all cases.
[20]Above.
[21]Above.
[22]Reference may be made to cases such as Chaplin v Hicks [1911] 2 KB 286; Nickolaou v Papasavas (No. 1) (1988) 63 ALJR 69, Johnson v Perez (1988) ALJR51 and Sellers v Adelaide Petroleum NL (1994) 179 CLR 332.
[23]Above.
[24]Above.
[25][1987] 1 AC 750 (Court of Appeal and House of Lords).
[26]See particularly, Chappel v Hart (above) 274-5.
It is difficult to see any reason in principle why a plaintiff should not be compensated in appropriate circumstances for a lost opportunity if it flows from the alleged negligence. It has been said:
“The law of negligence may be seen as directed to several purposes, but purposes of compensating the injured and promoting reasonable conduct are prominent among them.”[27]
In appropriate cases, an entitlement to compensation for the lost opportunity of a more favourable outcome addresses those purposes[28]. Bearing such policy in mind, there is a strong case for saying that lost opportunity should be recognised by the law as a head of damage and compensated because it enables a plaintiff to obtain compensation in circumstances where negligence has deprived that plaintiff of a real chance or opportunity while at the same time avoiding the potentially unreasonable result of excessive compensation or no compensation despite the negligence of the defendant. This was the view of the majority in Sellars v Adelaide Petroleum NL[29].
“The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity.”[30]
It may also be said to be unjust and contrary to the underlying policy objectives for a plaintiff to be denied compensation because critical evidence is unavailable as a result of the negligence of the defendant. The present case is such a case. It was the negligence of the defendant that prevented the parties knowing what the size of the tumour was as at 25 October 1990.
[27]Chappel v Hart (above) at 285.
[28]See also generally Fleming Law of Torts, 9th Ed, 8ff.
[29](1992–1994) 179 CLR 332 at 355 the majority comprising Mason, C.J. and Dawson, Toohey and Gaudron, JJ.
[30]See also valuable discussion in G Masel, "Damages in tort for loss of chance" (1995) 1 Torts Law Journal 43.
Judges and commentators have pointed to potential difficulties and complexities in such an approach but I suggest that in practice they would be no more difficult to deal with than the sorts of issues that arise in complex injury and professional negligence cases in any event. For example, whether statistical evidence (one of the identified concerns) should be received will depend upon its relevance and courts have had to handle difficult actuarial evidence over the years and coped.
A passage in the judgment of McHugh, J. in Chappel v Hart suggests a possible approach to the issue which may avoid some of the criticisms . His Honour, at the end of his judgment, stated that that case was not a "loss of chance" case. His Honour went on:
“No part of the relationship between the plaintiff and the defendant involved her being given the opportunity to seek a higher standard of care or better treatment from another surgeon or an opportunity to have the procedure carried out without perforation of the oesophagus. Her relationship with the defendant gave her a legal right to have her condition examined, diagnosed and treated with reasonable care and skill by the defendant and to be informed and advised by him of any material risk inherent in the proposed procedures. But nothing in that relationship required the defendant to provide opportunities of the kind to which I have just referred. The damage that the plaintiff suffered was physical injury, not loss of a chance or opportunity.”[31]
His Honour was there emphasising the importance of establishing whether the relationship carried with it an obligation to give an opportunity of the kind alleged. In that situation it may well be that the relationship carries an obligation to give an opportunity for timely treatment[32]. Often in the patient doctor relationship the relationship may be said to involve an obligation on the part of the doctor to give the patient certain opportunities such as the opportunity for timely treatment and, so, a better outcome – usually in the diagnosis of illnesses and the giving of advice. Where, however, the medical practitioner is negligent in administering an appropriate treatment or surgical procedure it may be inappropriate to speak of the relationship involving the giving of an opportunity for a better outcome.
[31]Paragraph 50.
[32]Note, Hedigan, J in Naxakis v Western & General Hospital & Anor [1999] VSC 389 (15 October 1999) drew a distinction between loss of a chance in the course of treatment as distinct from advice.
In the present case, it may be said that the relationship between the defendant and the plaintiff involved the defendant giving the plaintiff the opportunity to seek timely treatment and, as a result, a more favourable outcome and that the defendant's negligence caused that opportunity to be lost. In that situation one can speak of a lost chance or a lost opportunity.
I should, however, resist the temptation to add further to the judicial statements in this area. Ultimately, I suggest it is unwise to attempt to lay down a general rule about whether a lost chance or lost opportunity claim is or should be available in medical negligence cases. The courts should proceed in the traditional incremental common law way. It would be particularly unwise to do so in this case where the issue was not debated at the trial.
In the current state of the law, I suggest that the proper conclusion is that the law will allow a claim for damages for lost opportunity of a more favourable outcome resulting from the negligence of a doctor but the precise boundaries of such claims await future determination. In those circumstances, and the defendant having chosen not to dispute such an entitlement at trial, the matter can be referred back to the learned trial judge for reassessment of the damages for the lost opportunity of a better outcome should the appellant be successful in challenging the assessment of damages.
The first argument of the appellant – failure to find negligence in 1989
The appellant submitted that while there was a dispute on the evidence about the occasions when the plaintiff had attended the defendant, his Honour found at least the following; that he had attended the defendant on 8 March 1989 and 14 March 1989 complaining of intermittent headaches[33] and was seen again by the defendant at home on 9 October 1989 when he received an injection because of the severity of his headache. His Honour noted that in 1989 the plaintiff made eight or nine visits to Dr. Singh most of the time accompanying his wife and child at which he complained of the continuing headaches and that Dr. Singh gave him samples of Panadeine Forte and Mersyndol[34]. He also noted in his reasons that the plaintiff had asked Dr. Singh to refer him for a CT scan early in 1989 and in late 1989 when he was seen by Dr. Singh on the occasion when he received an injection from Dr. Singh[35]. It also was put for the appellant that his Honour accepted the evidence of one of the plaintiff's friends, Mark Di Donato, of intense headaches between 1989 and 1990 and another friend Mr. Papaioannou of frequent headaches especially noticeable in 1990 and particularly by the end of that year but concluded that “the original headaches were intermittent and not as severe as the intractable headaches of the last half of 1990 . . . “[36]
[33]D37.
[34]D36.
[35]Appeal Book D5.
[36]Appeal Book D38.
The appellant argued that, having made those findings, his Honour should have found that as at October 1989, having then a history from the plaintiff of intermittent headaches not relieved by medication and finding the plaintiff in a situation where a headache was of such severity that an injection was required, Dr. Singh should have done more. In addition, it is put that a reason he did not do more was that he did not keep adequate notes.
Counsel also referred the court to statements made by the defendant in his evidence which, if accepted, constituted admissions of negligence at that time. For example, he commented in response to questions from his counsel in one instance saying:
“You could maybe the first two times that you may say, ‘Okay, well look your headaches you know on my examination they don't look too bad so you know, take this, go home and try this.’ Second time he may do a further examination and order some tests. But by the fifth time, the patient coming back with a history like that, there’s just no way you would send a patient off home and say look, ‘take Panadol or Panadeine Forte. . . . ‘ it’s just grossly negligent. You really – I mean it is a sign of someone who's totally incompetent, who's not medically trained.”[37]
[37]T1104.
Later he was asked to consider the situation of having seen a patient regularly in 1988 and early in 1989, and asked as to the propriety of just sending such a patient away with Panadol. He responded:
“First of all I will assure you there is just no way a patient would be seeing me for the same problem 8 or 9 times. That is just not my practice.”
And later having had another example put to him said this:
“No I am pretty confident that even a fourth or fifth year medical student would give you that answer if someone is coming in, you know, with the same complaint, you know, three four times something has to be done. If it is 8, 9 times, 13 times I shouldn't be working.”[38]
[38]T1113.
In cross-examination he was asked:[39]
[39]T1256.
“If somebody had come to you in 1989 for two weeks in a row complaining of severe headaches, not much relieved by analgesics then you would ordinarily refer for a CT scan? . . . Yes, you would be very concerned.
That was what you would have done? – Yes.”
The appellant, however, cannot rely on the statements in view of his Honour's assessment of them – an assessment that was open. His Honour noted[40] that
“In fact the defendant, perhaps to reinforce his professed absence of negligence, set for himself in his evidence a stricter standard tha[n] in my judgment should be imposed upon a reasonably competent general practitioner.”
His Honour did, however, rely upon the defendant's evidence that had he been presented with the situation of “a series of persistent headaches, alternatively headaches in combination with left sided weakness, he would have referred the plaintiff to a neurologist or initiated steps to have a CT scan taken”. His Honour went on to say that[41]:
“Nevertheless by the night of 25 October 1990, had the defendant take proper history notes at each consultation, as he should have done, he would have been in a position to appreciate the number of past complaints of headaches which I find had occurred and at that stage, or if he did not have progress notes with him, when he came to write them up the next day, he should have set in train steps to obtain a more definitive diagnosis of the plaintiff's condition either by referring him immediately for a neurological examination by a specialist neuro-surgeon or, alternatively, referring him for a CT scan as he ultimately did on 7 January 1991.”
[40]Appeal Book D41.
[41]Appeal Book D41.
Counsel for the appellant also referred to his Honour's finding that when the defendant examined the plaintiff on 25 October 1990 and gave him another injection, that the defendant had “adhered to his view that the plaintiff's recurrent headaches were stress related.” Counsel submitted that this revealed that his Honour plainly accepted that the defendant was aware that the plaintiff had been suffering from recurrent headaches.[42]
[42]D39.
Reliance was also placed on the evidence of a report of a Mr. Gilligan, a neurologist[43]. That report stated that if headaches do not settle with treatment then a patient should be referred to a neurologist.
[43]See 153/157.
Counsel for the appellant acknowledged that his Honour was not prepared to hold that the defendant had been negligent until he was aware of left sided weakness and held that the defendant was not aware of the left sided weakness until 25 October 1990. Counsel submitted that his Honour applied a standard that was too high. While his Honour found no intractable headaches until the last half of 1990, counsel submitted that what mattered was that there had been recurrent intermittent headaches which had not been getting any better on the treatment given. He submitted that the explanation lay in the fact that the doctor did not keep notes. It was not necessary, he said, for the headaches to be intractable before reference to a neurologist or for a CT scan should have been pursued. Counsel submitted that when the defendant found a patient requiring an injection after a history of intermittent headaches he should have conducted further tests and was negligent in not doing so.
Finally, counsel submitted that if his Honour should have found negligence by October 1990, it was clear from his Honour's reasons that he accepted that at that time the tumour would have been not more than 3 centimetres in diameter and that, therefore, there was a very high probability of a favourable outcome to any
operation to remove the tumour. Counsel submitted that his Honour should have awarded damages to the plaintiff on that basis.
In response, counsel for the respondent accepted the finding[44] of negligence on 25 October 1990. He said it was open to the judge. He referred to the finding[45] that the judge accepted recurrent headaches were occurring with increasing intensity by 25 October 1990.
[44]Appeal Book D39.
[45]Appeal Book D40.
As to the argument advanced by Counsel for the appellant that the judge should have found negligence in 1989, counsel submitted there was no substance in that argument. He said the plaintiff had to establish that a reasonably careful general practitioner would in 1989 have conducted further examinations.
Counsel for the respondent submitted that it was necessary to set the background and history of the matter. He submitted, first, that the credit of the plaintiff and the plaintiff's witnesses was seriously in question on issues such as the history of the headaches, the degree of the headaches and whether left side weakness existed at the times claimed. He referred to the differences in the statement of claim suggesting that the amendment that occurred coincided with a report from Mr. Siu which suggested that there would have been no change in the size of the tumour between 25 October 1990 and 7 January 1991. The writ was then amended to allege left sided weakness in 1988 and 1989 and the seeking of treatment during that period for headaches and left sided weakness and the existence of noises of fluid in 1990. Mr. Siu's opinion had suggested that the outcome was inevitable even if the operation had taken place in late October 1990. Counsel mentioned that the plaintiff's solicitor was called and, as a result, instructions to that solicitor were placed in evidence and those instructions accorded with the original writ pointing to headaches and left sided weakness occurring in 1990 not at an earlier time. While accepting that the defendant came under much criticism for matters such as having no notes when there had been attendances, his Honour found that the plaintiff's evidence as to symptoms and the reliability of the plaintiff and his witness had been significantly and successfully attacked.
There is much force in these arguments. A great deal of doubt was cast on the reliability of the evidence which had been adduced for the plaintiff about the nature, extent and strength of the symptoms of headaches that he was experiencing and the extent and timing of left-sided weakness. Doubt, therefore, was raised about the picture that would have presented itself to the defendant. Much would have turned on his Honour's assessment of the people that gave evidence before him and it cannot be demonstrated in those circumstances that his Honour erred in not finding negligence prior to 25 October 1990 when it was that his Honour held that Dr. Singh was informed of the left sided weakness symptoms. I am also satisfied that the standard of care he applied was appropriate.
Appellant’s Argument 2(a) - judge should have found tumour was 3 cm in diameter
Counsel for the appellant submitted that, accepting the finding of negligence as at 25 October 1990, the learned trial judge should have found, on the balance of probabilities, that the tumour was then not more than 3 centimetres in diameter and the negligence was a cause of the loss and damage suffered following the operation in January 1991. Counsel for the appellant relied upon the findings of his Honour that if the tumour had been diagnosed when it was measuring 3 centimetres the outcome of the operation would have been much better[46] and that at 3 centimetres the chance of complete removal of the tumour would have been quite high and the duration of the retraction of the brain would have been less with less residual damage[47]. He also referred to his Honour's finding that he preferred the evidence of Mr. Cummins that the tumour could have suddenly expanded 2 centimetres in the last three or four months prior to detection[48]. Counsel argued that in light of those findings, his Honour should have found that the tumour was not more than 3 centimetres in diameter as at 25 October 1990 and there was a causal connection between the loss and damage claimed and negligence.
[46]Appeal Book D42.
[47]D42.
[48]D43.
Counsel for the respondent, on the other hand submitted that on the evidence of the experts the correct finding was that the tumour was the same size in October 1990 as it was in January 1991 because the symptoms were the same on both occasions. Counsel relied upon the evidence relating to size of tumour and symptoms and sought to argue that his Honour should have found that the tumour had already grown to about 5 centimetres by October 1990. Alternatively, counsel for the respondent submitted that, assuming it was open to find that there had been some growth between 25 October 1990 and 10 January 2000, the judge could not make any finding about the extent of growth during that period and, in particular, could not find that the tumour was 3 centimetres in October.
Counsel for the appellant responded by referring to:
(a)the evidence of the ear, nose and throat specialist Wilson[49] who saw the plaintiff on 26 October 1990 (the day after examination by the defendant) who described the plaintiff as having more headaches but did not refer to any left sided disabilities and did not refer to intractable headaches. In other words, the evidence supported the spurt theory. Counsel said one would expect to find intractable headaches and left sided disabilities if there was a 5 centimetre tumour and, therefore it was open to the judge to find that the 5 centimetre tumour hadn't arrived and in fact it was at the beginning of the spurt.
(b)the evidence of Cummins which indicated a qualification both to his evidence and Siu's evidence that they did not expect as a matter of probability that there would have been any difference. They both accepted the possibility of
late development. There was, therefore, a chance of a better outcome as his Honour stated. His Honour's finding was:“Accepting Mr Cummins's evidence that if the tumour ‘develops a cyst it will grow quickly’ there exists a possibility that the tumour may have been significantly smaller in Oct 1990 and operative removal at that point more beneficial to the plaintiff.”[50]
[49]B1063-4 and Exhibit C472.
[50]Appeal Book D43-4, see above, para. 9, for balance of text.
It seems to me that both parties find themselves in a similar position in that, his Honour accepted the evidence of Mr Cummins that this was a particular type of tumour which because of the presence of a cyst and haemorrhaging could have expanded quickly over a short period of time. There was, however, no direct evidence of the size of the tumour on 25 October 1990 and no evidence enabling a finding as to a rate of growth. The evidence of symptoms did not assist. As a result, I am not persuaded that his Honour was bound to find, even on the balance of probabilities, that the tumour was 3 centimetres in diameter on 25 October 1998.
Third argument – “loss of chance” assessment
Counsel for the appellant submitted that the learned trial judge had held that there was a real benefit lost. His Honour referred to the loss as being the loss of “a chance of a more favourable outcome of an operation at the end of October 1990 than the result following the operation on 10 January 1991”.[51] The chance was lost because the plaintiff was denied the opportunity to have the tumour excised at a time that could have produced a better result.
[51]Appeal Book D43.
Counsel submitted that the measure of that loss involved initially a comparison between the appellant's situation having regard to his unfavourable outcome and his situation had he achieved a completely favourable outcome. He submitted that that involved assessing the various heads of damage as if he was entitled to the full measure of loss for the unfavourable outcome. He submitted that it was then necessary to evaluate, by reference to the degree of likelihood, the appellant's chance of avoiding that unfavourable outcome across the various heads of damage having regard to the evidence and the findings by the learned trial judge.
Counsel submitted that on no view was the sum of $30,000 a reasonable measure of that loss of chance. Counsel submitted that in monetary terms it represented the value of a virtually negligible chance particularly bearing in mind the fact that the sum also included an award of damages for the pain and suffering and loss of enjoyment of life associated with the prolonged period of very serious symptoms and disabilities endured by the plaintiff in the 10 weeks between 25 October 1990 and 7 January 1991.
Counsel submitted that the chance included the loss of the opportunity to
(a)remove all of the tumour;[52]
[52]Transcript 816.
(b)effect a cure;[53]
[53]Transcript 815.
(c)operate at a time when hydrocephalus was not present at all or less present;[54]
[54]Transcript 811.
(d)operate in a manner that the retraction of the brain would have been less or less complex thereby producing less brain damage and sequelae such as epilepsy;[55]
[55]Transcript 811, 822, 1375.
(e)eliminate or minimise a risk of regrowth of the tumour;[56]
[56]Transcript 811.
(f)eliminate or minimise the need for the second (1994) or third (future) operation with their result of risks and sequelae[57]; and
[57]Transcript 818.
(g)eliminate or minimise the pain and suffering loss and enjoyment of life and pecuniary losses resulting from the second and/third operations and the sequelae.
Counsel submitted that each head of damage should be looked at for the purpose of this exercise, the relevant heads of damage being:
(a)past and future pain and suffering and loss of enjoyment of life;
(b)past and future medical and like expenses;[58]
(c)loss of earnings in the past - $15,564;
(d)loss of earning capacity - $400,000; and
(e)loss of superannuation entitlements - $50,000.
[58]Appeal Book 36-38.
On any view counsel submitted that, if the plaintiff were to have been successful in recovering damages for all the consequences of the tumour and the operations, an amount in excess of $600,000 would have been awarded in compensation including an amount in excess of $200,000 to compensate for past and future pain and suffering and loss of enjoyment of life. He referred to his Honour’s view that, it was unlikely that the plaintiff would work again. He submitted that on that basis to award $30,000 was so unreasonably low that the Court of Appeal should so rule and allow the appeal and order the reassessment of damages.
Counsel submitted that the loss of the chance was real and substantial. The appellant had the chance of avoiding all the consequences of the poor outcome and of having a substantially better result and, in particular, being operated upon before the tumour increased dramatically at the end of the period terminating in its removal. This was critical because the size of the tumour was determinant of the extent of the good result. Counsel submitted that the learned trial judge made an entirely erroneous estimate of the damages which warrant the interference of the Court of Appeal[59].
[59]See Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505 at 508.
Counsel for the respondent submitted that his position is that the plaintiff can keep the $30,000 although that sum is too much. He said the plaintiff has established a breach of duty and was entitled to damages for the 10 week period prior to the operation. The damages were not formally disputed. But the plaintiff was not entitled to damages for the consequences of the operation and its aftermath. Counsel said that the judge fixed a very small sum for damages because the chance of avoiding the poor outcome was very small - it was only a touch over speculation. Thus his Honour added something to the damages for the pre-operation period. We do not know what it was, he argued, because the judge did not give us a break down. His findings meant really that there was no damage for delay. He said in all the circumstances, and in view of the smallness of the amount, the broad brush approach of the learned trial judge was appropriate.
Counsel for the respondent referred to evidence relating to the growth pattern of the type of tumour in question and the expert evidence also about symptoms associated with the tumour. He submitted that although it was possible the delayed diagnosis made a difference, it probably did not.
As to the finding that, at the end, the tumour could have swelled quickly, he said it was not the last week or two to which reference was being made but what was involved was a process of some years and the reference was to the end of that process. Counsel then went through the learned trial judge's findings[60] pointing out that his findings about the plaintiff's intermittent headaches in March 1989 were markedly different from the plaintiff's evidence. At the same time he relied on the finding of intractable headaches in the latter half of 1990 – i.e. prior to 25 October 1990.
[60]Appeal Book D37-D39.
Counsel repeated that, on the basis of the findings, there was no more than a chance of a more favourable outcome one just above the level of a speculative chance.
I turn to the learned trial judge's findings. His Honour, in dealing with economic loss[61] stated that the following losses were “virtually common ground” looking at the plaintiff's claim on the basis of one for full recovery of damages.
[61]Appeal Book D11.
(a)Past loss of income $15,654 representing the nett loss of salary due to his demotion from supervisor to technical assistant following the operation.
(b)Potential loss of capacity to earn in the future ranging from $400,000 to $480,000 taking into account a 15% deduction to cover contingencies other than statistic mortality (already included in the multiplier) and deduction of $55,000 which the plaintiff expected to receive on retrenchment.
(c)Loss of superannuation benefits ranging from $46,000 to $65,000.
His Honour commented:
“The claim therefore had an enormous potential.”
His Honour did not comment on the potential size of damages for past and future pain and suffering and loss of enjoyment of life. His Honour, however, made relevant findings about the plaintiff and his history prior to the discovery of the tumour[62]. It appears the plaintiff is the son of Greek Cypriot migrants who at the age of 10 returned to Cyprus for five years. He returned to Australia in 1974 where he completed his Higher School Certificate in 1977. He initially enrolled in a computer course at the Caulfield Institute of Technology but left to become a trainee operator at South Pacific Tyres. He did so because he wanted to marry a girl he had met at high school. They did subsequently marry and, as at the date of judgment, had two children aged 11 and 4. His Honour appeared to accept the plaintiff's description of himself as a fitness fanatic who did weight training at several gymnasia and at home. He also had played outdoor and indoor soccer, indoor cricket and volleyball, the latter both at A grade level and often ran around the Botanical Gardens. He was apparently a keen worker who advanced to Senior Computer Operator and ultimately supervisor with some 14 or 15 computer operators under his charge. He temporarily left that business in 1983 to follow in his parents' footsteps and conduct a green grocery business but returned to South Pacific Tyres.
[62]Appeal Book D2.
His Honour made specific findings about the pain and suffering and loss of enjoyment of life for the period from 25 October 1990 up to the operation in January 1991 (which was not in dispute) and thereafter. His Honour found he was “very ill” during that period, having “blinding” and “intractable” headaches, left sided weakness and dragging of his left leg[63]. His condition brought his marriage to the verge of collapse[64].
[63]Appeal Book D. 44, 45.
[64]Appeal Book D6.
His Honour did not record his findings about the extent to which the plaintiff had suffered intellectual impairment. But it was not seriously disputed that the intellectual impairment was significant in all areas; for example, verbal skills, memory, organisation and reasoning. It resulted in his demotion. There was also evidence of significant deficits in attention skills making him mistake prone and causing significant difficulty absorbing information. His ability to understand others and their thoughts and feelings was also said to be significantly affected. There was also evidence of a significant visual spatial problem making it difficult to absorb information on a computer screen and difficult to judge distances and evidence of the probability of future deterioration and the presence of persistent depression and anxiety resulting from the brain damage. There was also evidence of the possibility of an increase in the tendency to epilepsy and in cognitive defects with further brain surgery[65].
[65]See e.g. the evidence of the parties' neuro-psychologists Ms. Frei and Ms. Anderson.
His Honour made a number of findings of fact as to what has occurred since the operation in January 1991[66]. His Honour found that there was resultant cerebral oedema causing bouts of epileptic fits following the operation. The plaintiff spent two weeks in a semi-comatose state. He gradually improved, however, spending a further two weeks in the Alfred Hospital and then being transferred to the Royal Talbot Rehabilitation Centre where he remained until 15 March 1991. He was there given physiotherapy, occupational therapy and speech therapy. He remained an outpatient of that centre until May 1991 and has continued with gymnasium work for general fitness. Following the operation he has had problems of bladder and bowel control and epilepsy. He was given medication for those complaints and was at the time of judgment still receiving that medication. As at the time of judgment, he was still suffering some severe headaches particularly after a heavy week at work. He has physical weakness on the left side of his body. His left hand was quite weak and he lacked fine motor control of the fingers and had a residual cold feeling in his left arm and left foot. He had trouble with his lateral vision on the left side. He dragged his left leg a little while jogging.
[66]Appeal Book D8.
In January 1994 he underwent a further operation because the remnant of the tumour remaining after the original operation had grown to 2.5 to 3 centimetres in diameter. The second operation involved a craniotomy - an incision through the old suture line. A large amount of the tumour was removed. His recovery on this occasion was relatively fast without many of the adverse consequences which followed the first operation and he was discharged eight days after the operation. Since that operation he has undergone periodic MRI scans which as at the date of judgment had revealed regrowth of the tumour in two areas each of about 1.5 centimetres in diameter but they had remained stable for the previous two years. His Honour appeared to accept that there would be a need in the future for a further operation and possibly more than one. Each would cost in the order of $40,000 - $50,000 unless performed in a public hospital.
The evidence led relevant to the issue of pain and suffering and loss of enjoyment of life, if accepted, paints a picture of extremely serious disabilities and substantial continuing pain and loss of enjoyment of life. I did not understand this evidence to have been challenged. Without going beyond his Honour's express findings, however, and without expressing any concluded view, it may be said that the sums put forward by counsel for the appellant as appropriate amounts for compensation under the various heads of damage are not unreasonable.
A difficulty in assessing the challenged outcome is the brevity of his Honour's reasons on this branch of the case. Having regard, however, to the size of damages assessable on the basis of full recovery, the awarding of damages of $30,000 [67]points to a discounting by his Honour of the loss of the chance that does not accord with his Honour's conclusion that the chance of a better outcome while “not high” was nonetheless “not so low as to be regarded as speculative”[68]. The award could be justified, as counsel for the respondent attempted to do, if his Honour had taken the view that the chance was only just above the speculative level. In advancing that argument, counsel for the respondent was indicating where he placed the assessment of the chance by his Honour in light of the damages awarded. But his Honour did not describe the chance in those terms. On the basis of his Honour's findings,[69] the chance of a better outcome was better than merely just above the speculative level.
[67]This included damages for the 10 week period prior to the first operation for which in my view $15,000.00 would not be unreasonable.
[68]Appeal Book D43.
[69]see above para. 8.
I appreciate that I may be doing the learned trial judge an injustice. He was not in the circumstances in a position to give a detailed analysis and his task was difficult. But in the absence of such an analysis, I feel compelled to conclude that the damages awarded were so unreasonably low that error has been shown and that the damages should be reassessed.
Conclusion
Counsel for the appellant and respondent accepted that there are difficulties in this court making the assessment because there were no direct findings on lost earning capacity and other heads of damage. Counsel accepted that, this Court not having seen the plaintiff, assessment of earning capacity could be a problem. Counsel for the respondent submitted that there were serious credit issues in relation to the plaintiff and in relation to the assessment of past and future pain and suffering and the past and future earning capacity. What was required was an assessment of the plaintiff, and for that matter, all the plaintiffs' witnesses. He also submitted that there may need to be further evidence in view of the fact that two years have elapsed since the hearing and that would be a matter for argument with the judge. He urged
that the matter, if it is to be referred back, be sent back to the trial judge. Counsel ultimately agreed that the latter would be appropriate course
The matter should therefore be remitted to his Honour for reassessment of damages.
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