Hamlyn v Stanton (No. 3)

[2020] NSWDC 632

District Court

New South Wales

Medium Neutral Citation:

Hamlyn v Stanton (No. 3) [2020] NSWDC 632

Hearing dates:

12-16 October 2020

Date of orders:

23 October 2020

Decision date:

23 October 2020

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraphs 258-261

Catchwords:

TORTS – negligence – medical negligence – urologist performed surgery on patient with prostate cancer – urologist explained advantages and disadvantages of surgery and also alternative treatment of radiotherapy – urologist did not inform patient of possibility of receiving assessment by a radiation oncologist – whether omission to so inform was negligent – whether omission to refer patient to radiation oncologist for assessment was negligent – standard of care for professionals under s 5O of Civil Liability Act 2002 (NSW) – whether statutory standard applicable to each allegation of negligence – identification of ‘risk of harm’ – whether urologist took reasonable precautions – significance of opinions of expert urologists and expert radiation oncologists – causation – whether factual causation made out

Legislation Cited:

Australian Consumer Law, s 60

Civil Liability Act2002 (NSW), ss 5B, 5C, 5D, 5E, 5O, 5P, 15, 17A

Cases Cited:

Avopiling Pty Ltd v Bosevski [2018] NSWCA 146

Badenach v Calvert [2016] HCA 18

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

Chappel v Hart (1998) 195 CLR 232

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

F v R (1983) 33 SASR 189

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580

Montgomery v Lanarkshire Health Board [2015] UKSC 11

Neal v Ambulance Service of New South Wales [2008] NSWCA 346

Queensland v Masson [2020] HCA 28

Rogers v Whitaker (1992) 175 CLR 479

Rosenberg v Percival (2001) 205 CLR 434

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513

Tabet v Gett (2010) 240 CLR 537

Vairy v Wyong Shire Council (2005) 223 CLR 422

Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505

Watson v Foxman (1995) 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158

Texts Cited:

Ipp Committee, Review of the Law of Negligence Final Report (September 2002)

Walmsley, Abadee, Zipser & Sirtes, Professional Liability in Australia (3rd ed, Lawbook Co, 2016)

Category:

Principal judgment

Parties:

Mr R Hamlyn (Plaintiff)
Mr R Stanton (Defendant)

Representation:

Counsel:
Mr D Elliott for the plaintiff
Ms J Sandford for the defendant

Solicitors:
Gerard Malouf & Partners for the plaintiff
Moray & Agnew Lawyers for the defendant

File Number(s):

2019/188426

Publication restriction:

Nil

Judgment

INTRODUCTION

1. In February 2017, the plaintiff, Mr Hamlyn, received a diagnosis that he had Gleason Grade 7 prostate cancer. He was informed by his urologist, Dr Stanton, the defendant, that he needed active treatment. In reliance upon Dr Stanton’s advice, he elected to receive surgery, known as a ‘radical prostatectomy’, involving the removal of the prostate. He received that treatment and the cancer was removed. But complications set in after the surgery. He asserts that he suffered post-operative anaemia, post-operative ileus, clostridium difficle colitis and retroperitoneal collection. Most significantly, Mr Hamlyn complains of on-going and significant urinary and faecal incontinence and associated stress and anxiety.

2. Mr Hamlyn does not complain that he was not warned by Dr Stanton about these potential complications. Unfortunately, many of the risks outlined to him came home. But his case is that the injuries and disabilities that he has since suffered could have been avoided had he received a fully informed explanation about the potential viability of radiation therapy, as an alternative form of treatment, in comparison to the surgery. He says that with the benefit of that information, he would have gone on to have that alternative treatment. Although he accepts that this alternative option was mentioned by Dr Stanton, it was done so in perfunctory terms and Dr Stanton had ‘steered’ him towards electing to undergo surgery. Mr Hamlyn says that if he had been meaningfully informed about and offered an alternative form of treatment, involving radiation therapy, he would have elected to have undertaken the radiation therapy and, in so doing, he would avoided the complications associated with the surgery which he says he suffered. He alleges that Dr Stanton should have referred him, or offered to refer him, to a radiation oncologist to receive information and advice about that form of treatment so he could make a fully informed decision about what form of treatment he should receive.

3. By this proceeding, commenced on 18 June 2019, Mr Hamlyn sues Dr Stanton for damages for personal injury. He brings claims in negligence and also for non-compliance with the consumer guarantee that he would render services with due care and skill under s 60 of the Australian Consumer Law.

4. The heads of damages he claims are non-economic loss, past and future out of pocket expenses, and past and future care and assistance.

5. By his Defence (as amended), Dr Stanton asserts that, amongst other things, he discussed the merits of both surgery and radiation therapy, and the advantages and disadvantages of both forms of treatment. He accepts that he did not refer Mr Hamlyn for an opinion from a radiation oncologist but asserts that in the circumstances, there was no requirement for him to do so. Dr Stanton disputes that he was negligent or did not comply with any consumer guarantee. He also denies that any breach of the duty of care by him caused Mr Hamlyn to suffer his alleged injuries and disabilities. Dr Stanton also invokes s 5O of the Civil Liability Act2002 (NSW) and says that this legislative standard applied to the advice and information he supplied to Mr Hamlyn on 15 February 2017, and also 15 March 2017.

6. The plaintiff has identified that the issues requiring the Court’s determination concern:

1. the content of the advice or information that Dr Stanton supplied to Mr Hamlyn on 15 February 2017;

2. whether s 5O of the Civil Liability Act was satisfied so as to be conclusive of the issue on the standard of care;

3. whether Dr Stanton’s advice was inadequate to enable Mr Hamlyn to decide his ‘treatment modality’;

4. whether it was unreasonable for Dr Stanton not have referred Mr Hamlyn to a radiation oncologist;

5. the nature and extent of the injuries sustained;

6. causation; and

7. assessment of damages.

FACTUAL BACKGROUND

Uncontentious facts

7. From February 2016, after discovering blood in his urine, Mr Hamlyn started to become concerned. On a digital rectal examination carried out by his general practitioner (Dr Romeo), he was found to have a very enlarged prostate with a PSA of 9.42ug/L. A referral was made out to Dr Stanton. As it happens, he saw Dr Robert Thomas at Wagga Wagga Hospital and in April 2016, he underwent a CT-IVU investigation. In August 2016, he was reviewed by Dr Thomas again. His PSA level was 13.2ug/L. On 28 November 2016, he consulted Dr Thomas again and was assessed as having a high PSA. His prostate was regarded as being extremely large, albeit with normal contours and consistencies.

8. On 15 December 2016, the plaintiff underwent a flexible cystoscopy, transrectal ultrasound and prostatic biopsies at the Riverina Day Surgery. This was performed by Dr Stanton. A review with Mr Hamlyn was planned for January 2017 in Narrandera. A histopathology of the prostate biopsies indicated that Mr Hamlyn had Gleason Grade 7 prostate cancer.

9. After undergoing a total (right) knee replacement surgery at the Wagga Wagga Rural Referral Hospital in January 2017, on 15 February 2017, in the presence of his former partner (with whom he has since separated), Mr Hamlyn consulted Dr Stanton to discuss the biopsy results from December 2016. His PSA at 25.1. This was a more than 250% increase above his February 2016 PSA reading. Dr Stanton informed him that he had prostate cancer.

Mr Hamlyn’s evidence

Consultation on 15 February 2017

10. At the time that he saw Dr Stanton on 15 February 2017, Mr Hamlyn accepted that he was not feeling all that well. He was still recovering from the total knee replacement treatment that he had recently received. He was on crutches. It was a delayed consultation, following the investigative procedure, the biopsies, that had been undertaken in December 2016.

11. In his evidence in chief, Mr Hamlyn recalled Dr Stanton informing him that if he had radiation therapy, and if that form of treatment did not work, he could not subsequently operate upon him. Mr Hamlyn could not otherwise recall whether the advantages or disadvantages of radiotherapy were discussed. He did recall being informed that his sexual function “wasn’t going to work again” and that he would need an injection to correct this.

12. In cross-examination, Mr Hamlyn accepted that he was informed about the reason for the biopsies in December 2016. It did not come as a surprise to him if Dr Stanton had referred him to the pathology results that were referred to, although he did not remember such discussion. There was no doubt, however, that he was informed that he had prostate cancer. He did not recall, however, discussion about the grade or volume of cancer. It was suggested that an explanation was given through the content of what appeared in a report on Dr Stanton’s laptop. Mr Hamlyn could not recall this, and indicated in re-examination that without glasses (which he recalled that he did not have on this occasion), he had difficulty reading.

13. Nevertheless, he accepted that he understood he was being advised that treatment of some kind was needed. He accepted that Dr Stanton had pointed out that one option for patients receiving the diagnosis was to ‘wait and watch’: that is, to monitor the spread of the cancer. He acknowledged being advised that because of his PSA level, this option was not appropriate for him.

14. The crux of his evidence was his denial that Dr Stanton had advised him of radiation therapy as an alternative to surgical treatment. Mr Hamlyn said, many times, that radiation was not the “way to go” and that Dr Stanton “had to” operate. He himself did not ask Dr Stanton about other treatment options or was even interested in doing so. In this respect, Mr Hamlyn was referred to a record made by Dr Teoh (a psychiatrist) of Mr Hamlyn informing him that he had been given such an option by Dr Stanton but Mr Hamlyn said he was not given the option. To the extent that the radiation therapy form of treatment was mentioned at all, it was only that Dr Stanton informed him that if he had the radiation therapy and it did not work, he could not operate. Accordingly, he recalled, Dr Stanton told him that the best way was to “pull” the prostate out.

15. He denied Dr Stanton explaining to him the nature of the radiation procedure (the exposure of his body to beams of radiation) or that if he chose that procedure, it would necessitate him visiting Riverina Day Surgery every day for 8 weeks. He denied that Dr Stanton had explained to him the advantages of surgery over radiation therapy; or discussions over the chances that that form of treatment might fail. He also denied Dr Stanton informing him that for patients of his age (he was then 61 years old), he and his urologist colleagues thought that the surgical form of treatment had better long term survival rates and that this form of treatment was suitable for him.

16. It was suggested to Mr Hamlyn that Dr Stanton had compared the two forms of treatment in the following way: that if the surgery failed, he could later have radiation; but if radiation therapy treatment was administered, but failed, subsequent surgery would be more difficult. Mr Hamlyn’s response was that Dr Stanton had only told him that he would need to pull the prostate out and that if he did so, he would be “all good”; and that if he had radiation treatment and if this did not work, he, Dr Stanton, could not (subsequently) operate.

17. Aside from this conflict as to the discussion of the two alternatives, Mr Hamlyn initially accepted that Dr Stanton had, in this consultation, discussed the risk of his developing permanent incontinence; a risk rated at two in three arising from surgical treatment. He also initially accepted that this rate of risk was referred to in the consultation on 15 March 2017. He also accepted that he was informed about the possible risk of erectile dysfunction and, if the risk materialised, he might need injections.

18. Mr Hamlyn recalled receiving ‘literature’ explaining the nature of the surgery to take away with him; which he did. But he said that his partner, Kristie, read it aloud to him. He did not read it himself. The only other matter on the need for surgical treatment which he recalled was that he was likely to be in hospital for 5 days; and that the longest period that Dr Stanton had known a patient to stay in hospital after this treatment was 10 days. Mr Hamlyn accepted that his recollection of what was said about the surgical treatment was imperfect, but did not accept that he was told more about it. He was adamant that no explanation was given as to what the radiation therapy option might involve.

19. In relation to his partner (who he colloquially, but formally and inaccurately referred to as his ‘ex-wife’), Kristie, Mr Hamlyn informed Ms Dinley, the defendant’s occupational health expert, that they had a ‘good non-sexual relationship’. That description remained current; although Mr Hamlyn had said that they had not spoken for a few months.

20. At the time he saw Dr Stanton on 15 February 2017, Mr Hamlyn accepted that his financial position was poor: his only source of income was his receipt of the disability support pension. Other than his cars, he had no real savings or liquid assets.

21. Mr Hamlyn did not recall whether, as was put to him, that the consultation ended with his being given referrals for further radiological investigation and a suggestion that he return to see Dr Stanton in a month’s time.

22. Mr Hamlyn did, however, recall receiving a referral for a whole of body bone scan and CT scan for the abdomen and pelvis and he underwent these investigations on 27 February 2017. This indicated that there was no evidence of metastatic disease.

Consultation on 15 March 2017

23. On 15 March 2017, Mr Hamlyn consulted Dr Stanton. As had occurred with the February 2017 consultation, Kristie was with him. He indicated in his evidence in chief that nothing had materially changed in the last month (though his knee had felt better). Mr Hamlyn said it was possible that Dr Stanton had discussed the results of the radiological investigations carried out. He recalled Dr Stanton indicating that he had no metastasis.

24. He consented to receiving surgery to have his prostate taken out; although he could not recall when that was given. He accepted being informed at this point that his PSA was rising and that this accounted for why he needed the treatment without further delay.

25. In his evidence in chief, Mr Hamlyn could not recall being told about the risk of bleeding. He did recall being told a risk about infection. He recalled discussion of the risk of permanent incontinence, but not the possibility of a requirement for secondary surgery. He did not recall being informed of a risk of rectal injury. He did recall being informed of the risk that he may lose the ability to achieve a spontaneous erection.

26. Asked in cross-examination what was operating on his mind in deciding to proceed with that form of treatment, he indicated he accepted Dr Stanton’s advice to go with the surgery. He accepted that Dr Stanton had reminded him of the possible complications of surgery. He did not recall being informed about a small chance of the need for a blood transfusion.

Treatment and the subsequent complications

27. On 2 May 2017, Dr Stanton performed a radical non-nerve sparing prostatectomy with bilateral pelvic lymph node dissection at the Wagga Wagga Rural Referral Hospital. There were multiple complications, including a 1cm surgical rectal laceration, ileus, colitis, anaemia and collections. But Mr Hamlyn was cleared of tumour suggesting a long-term cure without adjuvant therapy.

28. On 2 June 2017, Dr Stanton and Dr Thomas performed a laparoscopic marsupialisation of Mr Hamlyn’s lymphocele. The plaintiff was treated for anaemia and extreme diarrhoea and urinary incontinence.

29. He was discharged from hospital on 5 June 2017. He recalled experiencing infection and had had three drains inserted.

30. He saw Dr Stanton next on 13 June 2017. Mr Hamlyn’s catheter was removed and there was discussion about his urinary incontinence.

31. He saw Dr Stanton again on 2 August 2017. His urinary incontinence was improving slowing, although he was still using one pad a day. He said that he had bowel motions five to six times a day. Dr Stanton’s letter of this day to the general practitioner, Dr Romeo, recorded that his main complaint was diarrhoea.

32. Mr Hamlyn saw Dr Stanton again on 13 September 2017. At this time, he was experiencing bowel motions twenty times a day. He was prescribed Lomotil. Dr Stanton’s letter of this day recorded that his continence was near normal; and Mr Hamlyn had estimated that the total leakage in a day was under 25cc. A review was planned for November 2017.

33. However, Mr Hamlyn next saw Dr Stanton on 5 October 2017. Mr Hamlyn was troubled by flu and stress incontinence. He indicated that he now required 2 to 3 pads a day due to recurrent coughing and needed to empty his bowels 10 times a day.

34. On 17 October 2017, in an endeavour to investigate Mr Hamlyn’s increased bowel motion frequency, Dr Stanton performed a cystoscopy, an EUA with flexible sigmoidoscopy (performed by the general surgeon, Dr Jancewicz) and a methylene blue test (also performed by Dr Jancewicz) at the Wagga Wagga Base Hospital. Mr Hamlyn was discharged from hospital the next day.

35. Mr Hamlyn was scheduled to see Dr Stanton on 20 December 2017, but he did not attend. Dr Stanton’s letter to Dr Romeo indicated that no significant pathology was found following the cystoscopy, and no fistula formation was evident. Dr Stanton arranged for his secretary to make arrangements to see him in Wagga Wagga over the next few weeks, or in Narrandera, when he was next there in February 2018.

36. Dr Stanton next saw Mr Hamlyn on 29 January 2018. Dr Stanton’s letter to the general practitioner, now Dr McQueen-Thompson, recorded that Mr Hamlyn’s continence had been slow to normalise and he was still using two pads per day with total leakage over a 24 hour period to be in the order of 150cc. Whilst continent when he was supine and sitting, when Mr Hamlyn was active, and when he was coughing, he leaked variable amounts. Dr Stanton foreshadowed that if incontinence continued to be a problem, he (and the general practitioner) would need to consider an artificial urinary sling. The letter also recorded that Mr Hamlyn’s bowel motions had settled, however Mr Hamlyn had reported that he was still opening his bowels five times a day; a rate which Dr Stanton regarded as excessive.

37. In May 2018, Mr Hamlyn saw Dr Chris Byrne, at the Royal Price Alfred Hospital Medical Centre. Dr Byrne performed a transrectal ultrasound/anal manometry/anal EMG/rigid sigmoidoscopy. Dr Byrne’s reported findings indicated that Mr Hamlyn had normal ARPS studies and that he should not have faecal leakage. Dr Byrne identified Mr Hamlyn’s diet as being the likely cause. Dr Byrne was optimistic that he would improve with dietary and behavioural retraining.

38. On 4 July 2018, he consulted Dr Stanton and there was a discussion about a possible sling procedure he might undergo. Dr Stanton’s letter to Dr McQueen-Thompson interpreted Dr Byrne’s notes as signalling no anatomical or functional anomaly. At this consultation, the letter records Mr Hamlyn reporting mild to moderate ongoing stress incontinence, with the degree of leakage being in the order of 150cc a day. Dr Stanton discussed with Mr Hamlyn possible further treatment, being the use of an artificial urinary sphincter or an artificial sling. Mr Hamlyn was reputed to have understood that if he selected a sling and if that did not improve the incontinence, he could consider a sphincter down the track. Dr Stanton referred Mr Hamlyn for a sling procedure to be carried out by Dr Thomas over the next three months and asked Mr Hamlyn to see him in 6 or 7 months’ time.

27. Dr Stanton said that he understood that in the events that occurred, Mr Hamlyn had removed himself from the list. In his evidence, Mr Hamlyn said that he had second thoughts about such procedure, having received negative reports about it from others, and he had decided not to proceed with it. Mr Hamlyn also recalled discussion between the two as to why Mr Hamlyn was suing him.

28. Mr Hamlyn accepted that he had seen more than one urologist after the surgical treatment, though he provided little detail. He had seen Dr McQueen-Thompson. He had also seen Dr Souter. He had also seen Dr Lewin.

29. Mr Hamlyn said that his bowels continue to trouble him; particularly when he needs to drink. He said that he needs to drink lots of water for dietary reasons.

30. He accepted in cross-examination that his general practitioner had advised him to attend a dietician, had given him some advice and had prepared some scripts.

31. Mr Hamlyn accepted that in March 2019, he visited Dr McQueen-Thompson and received some prescriptions. However, he did not follow up. He had been prescribed a medication, branded ‘Slippery Elm Bark’ powder. Mr Hamlyn said that he had taken this, but it did not agree with him. It was suggested that another form of medication, ‘Xenical’, was prescribed for weight loss in September 2019, but Mr Hamlyn said that this had given him diarrhoea and he had not since used it. In October 2019, Dr Vitalis Ihuarulam had recorded Mr Hamlyn’s indication that he could not get Xenical due to its cost, but Mr Hamlyn said that he had ceased using it because of the effects of the medication.

32. In re-examination, Mr Hamlyn indicated that he had had discussion about an alternative to Xenical, but he had not pursued that alternative.

Dr Stanton’s evidence

Introductory matters

45. Dr Stanton’s curriculum vitae was tendered (Exhibit 2). It recorded him completing fellowship training in laparoscopic and urological oncology surgery in 2007. His sub-speciality was in the area of pelvic and laparoscopic oncology. Because of where he practices, however, he covers a wide range of urology services. He identified himself as having a “high volume” of prostate cancer cases for treatment: he might perform surgery of the kind he administered to Mr Hamlyn between 50 and 100 times a year.

46. In his evidence, Dr Stanton referred to his practice during consultations of dictating notes through the use of software which would form the basis for the creation of a letter to be sent to a patient’s referring general practitioner. The content of the letter was formulated in the client’s presence. In this way, the client would be privy to hearing of its substantive content. Dr Stanton saw no reason why this practice would not have been followed in his dealings with Mr Hamlyn. Dr Stanton’s correspondence with Dr Romeo, Mr Hamlyn’s general practitioner was in evidence (Exhibit 1, Tab 3).

47. In his evidence in chief, Dr Stanton elaborated on this evidence; although he accepted that his evidence of what occurred in consultations was predominantly influenced by the content of his correspondence and evidence as to the standard practices he deployed. Dr Stanton did not recall any circumstances to indicate why these standard practices were not applied on 15 February 2017. In cross-examination, Dr Stanton accepted that, without the benefit of his correspondence and recourse to his standard practices, his recollections of what he actually said to Mr Hamlyn were extremely limited and amounted, in effect, to his reconstruction of what he thought he would likely have told him.

48. Some other general features of that evidence was Dr Stanton’s participation in and exposure to multidisciplinary meetings with medical colleagues discussing the treatment of cancer patients. This might take the form of discussions at meetings lasting one hour, once a month.

The consultation on 15 February 2017

Dr Stanton’s letter to the general practitioner

49. Dr Stanton’s letter of this date indicated his informing Mr Hamlyn (who was accompanied by the person who the doctor believed was Mr Hamlyn’s wife) that the biopsies taken from December 2016 did confirm that he had prostate cancer; and, that although he had a ‘very low volume disease’, it was of ‘intermediate grade’.

50. The letter recorded that he explained to Mr Hamlyn the management options. Active surveillance was to be ruled out, given the grade of the disease and his PSA. This left only (a) a ‘radical prostatectomy’ (surgery); and (b) ‘external beam radiotherapy’ (radiation therapy). The letter records Dr Stanton discussing with Mr Hamlyn the differences between these two forms of treatment and the relative advantages and disadvantages of both.

51. The letter also records him explaining to Mr Hamlyn what was involved with the operation and the ‘salient’ potential risks. These risks included a 2-3% risk of permanent incontinence and the risk of erectile dysfunction. As to the latter, there could be no role for PDE5 inhibitors and he would need to consider intracavernosal injections.

52. The letter concluded by indicating that Mr Hamlyn was going to go away and ‘think about things’ and that Mr Hamlyn would return to see him in a month’s time. In the intervening period, Mr Hamlyn would have a CT and bone scan performed in Wagga Wagga and a PSA repeated.

Dr Stanton’s testimonial evidence

53. Dr Stanton recalled that the lapse of time between the biopsy results from December 2016 and his consultation in February 2017 was explicable because of the surgery on one of Mr Hamlyn’s knees.

54. Dr Stanton recalled informing Mr Hamlyn that he had an aggressive form of cancer, which required treatment. He believed that he mentioned the grade of cancer. Dr Stanton explained that the grade of cancer and the volume of the disease were critical factors in identifying the severity of the disease. His practice was to draw a sketch for the patient in this respect. He recalled suggesting that Mr Hamlyn have a further PSA, given the period of time since the previous one and the pattern of fluctuation. He also recalled informing Mr Hamlyn of his need to have a CT and bone scan. (These investigations were undertaken later in February).

55. He reiterated informing Mr Hamlyn that active surveillance was not an option. Where that option was not viable, he could not think of a circumstance where that circumstance was not pointed out to a patient. This left the alternatives of surgery or external beam radiotherapy.

56. Dr Stanton explained that where a patient was ‘young, fit and healthy’, he would routinely advocate for surgery. That form of procedure had higher survival rates for ‘younger’ patients compared to radiation therapy. Critically, if surgery failed, radiotherapy could be used as a ‘salvage’ form of procedure. If, however, a patient elected to have radiotherapy, surgery would remain possible, but it would be more challenging with a potential risk of higher complications. For example, the risk of incontinence would be elevated by 50%; and the risk of injury to the rectum would also be elevated.

57. Dr Stanton recalled that he would have explained that for anyone under the age of 75, the person would ordinarily be appropriate for surgery, and the younger the person was, the more preferable that form of treatment would be. For someone of Mr Hamlyn’s age (at that point, in his early 60s), surgery remained superior to radiotherapy in terms of the prospects of long term survival rates. He considered that he would have explained that the surgery would involve his making an incision in the patient’s abdomen, and going on to the surface of the prostate. He considered he would have explained the low risk of infection, the high incidence of cure rate (90-95%), and normal or near normal risk of incontinence. As to the latter, there was only a 2% risk of permanent incontinence and if that occurred, secondary surgery would be required. He considered that he would have explained that Mr Hamlyn would not likely to be able to have spontaneous erections. PDE5 inhibitors would not assist in circumstances where the nature of the surgery would mean that functioning nerves on the penis would be removed. Mr Hamlyn would need to consider injections to stimulate an erection.

58. Under cross-examination, Dr Stanton was challenged upon his view that survival rates from surgery were superior to radiotherapy. He explained that the inability to cure the cancer was likely to have been found out more quickly by surgery and a patient might then have more rapid recourse to radiotherapy as a ‘salvage’ form of treatment. A patient who had radiation therapy might, he believed, experience a greater delay in learning whether the disease had been cured and, if the radiotherapy was unsuccessful, the ‘salvage’ form for surgical treatment would be more difficult; partly because of the progression of the cancer. This explanation was challenged as being not supported in the literature and it was suggested to Dr Stanton he would not have had ready access to it anyway at the time he consulted with Mr Hamlyn. Dr Stanton disagreed that his view was not supported, and indicated that his view was formed through what he had read (and learned at periodic scientific meetings) although he accepted he did not have the literature ‘at his fingertips’. That, he thought, was impracticable.

59. Dr Stanton recalled explaining the option of external beam radiotherapy in the following way. As to what was involved, it would involve Mr Hamlyn attending once a day (on weekdays) for 8 weeks to receive treatment. The process involved the blocking of testosterone; with the intention of weakening the cancer cells. This procedure carried a similar risk (to surgery) of incontinence and erection problems, albeit that the materialisation of those risks was more likely to be delayed, in comparison with surgery. Other risks included radiation damage to the bladder (and possibly intermittent bleeding), bladder cancers and radiation damage to the rectum.

60. Dr Stanton recalled explaining to Mr Hamlyn that by electing to have surgical treatment – which he considered him fit enough to undertake – he could have two bites of the cherry in the sense earlier described: if the surgery did not work, he could then consider radiation therapy as a ‘salvage’. Dr Stanton could not conceive of circumstances where he would not have explained to a patient the grade of cancer, the differences between the forms of treatment and the relative advantages and disadvantages of both forms of treatment.

61. Dr Stanton also referred to his practice to supply a publication issued by the Cancer Council (as at February 2017, this was the April 2016 edition) titled ‘Understanding Prostate Cancer: A guide for people with cancer, their families and friends’ (Exhibit 3). Specifically, his practice was to advise patients to read the first part of the publication (approximately the first 40 pages). This part, in summary, refers to the screening of the cancer, the diagnosis and the treatment options. Dr Stanton considers it likely that he supplied this publication to Mr Hamlyn. He also considers that he would likely have advised him to read the first 40 pages, to write down any questions which might occur to Mr Hamlyn and have those questions available the next time that Mr Hamlyn saw Dr Stanton.

62. In cross-examination, Dr Stanton accepted that Mr Hamlyn was ‘eligible’ to have radiotherapy, but considered – and, he accepted, indicated – that it was not his best option, and not in his best interests. It was also put to Dr Stanton that he well understood that aside from the Cancer Council publication supplied, ordinarily, Mr Hamlyn was likely to rely upon his advice. I understood Dr Stanton to have accepted this, although he reiterated that he did invite Mr Hamlyn to write any questions that might arise from his reading the Cancer Council publication. Dr Stanton also indicated that if Mr Hamlyn was referred to a radiation oncologist, it was likely that this could have occurred within a period of a month; although whether it may have been appropriate might have been affected by what was discovered in the CT and bone scans arranged for 27 February 2017. Dr Stanton accepted, however, that a period of delay of 4 weeks, whilst of some concern given the timing of the December 2016 biopsy, was not critical.

63. In cross-examination, it was put to Dr Stanton that he would have appreciated that the circumstance that radiotherapy might have involved some inconvenience to Mr Hamlyn (such as the continuous course of treatment for virtually 8 weeks) was a small price to pay in view of the risks that could (and did) materialize from surgical treatment, such as incontinence and rectal injury. Dr Stanton disagreed. In a similar vein, it was suggested that undertaking radiotherapy might reduce the risk of urinary incontinence. Dr Stanton again disagreed. Radiotherapy also carried the risk of incontinence, only that it might become more apparent in the longer term than it could through surgery; and if that occurred, ‘salvage’ surgical treatment would be more difficult to perform. The rectal injury was relatively minor, and had been repaired. At any rate, although radiotherapy might not cause rectal injury, radiation toxicity might result in bleeding, mucus and changes in bowel habits. It was put to Dr Stanton that a radiation oncologist was better placed to identify the risks of complications arising from radiotherapy. Dr Stanton did not disagree. That being so, it was suggested that Dr Stanton did not give Mr Hamlyn a fair and informed opportunity to decide. Dr Stanton disagreed. He had supplied his own opinion and had also provided the Cancer Council booklet. Further, although he accepted that he had no expertise to discuss the content of procedures for radiotherapy, he was able to articulate the pros and cons of surgical treatment viz a viz radiotherapy.

64. He provided Mr Hamlyn with a referral for bone scan and CT Scan. These were carried out on 27 February 2017.

The consultation on 15 March 2017

Dr Stanton’s letter to the general practitioner

65. This letter recorded the consultation in Narrandera. It noted that Mr Hamlyn’s PSA had risen and that the CT and bone scan showed no indication of metastatic disease.

66. Dr Stanton had recorded his perception that Mr Hamlyn (and his ‘wife’) had ‘taken everything previously discussed on board’ and had decided to proceed with the surgery. It records Dr Stanton explaining the procedure and the risks of significant bleeding (‘very low’), the risk that he may require a blood transfusion (‘less than 1% chance’), the risk of infection (‘very low’) and the risk he would experience permanent significant incontinence (‘2 to 3% of patients’ would get it) which, if he got it, may require secondary surgery. However the vast majority of patients returned to normal, or near normal, continence within 3 months. The letter records Dr Stanton suggesting pelvic floor exercises he might take in the lead up to surgery and after removal of the catheter to aid the early return of continence.

67. The letter recorded Mr Hamlyn’s acknowledgment and understanding that he would not have spontaneous erectile function after surgery and there could be no role for PDE5 inhibitors. There was, rather, a need to discuss intracavernosal injections should he wish to develop erectile function in the future. A record was made also of discussion about the extremely rare risks of rectal and ureteric injury.

68. The letter concluded with the recording that the surgery would be performed by the end of April at the hospital (presumably Wagga Wagga).

Dr Stanton’s testimonial evidence

69. Dr Stanton acknowledged that aside from the letter, he had no independent recollection of what was discussed with Mr Hamlyn at this consultation.

70. Dr Stanton said that as at the commencement of this consultation, Mr Hamlyn had indicated his resolve to take the surgical option. He said that Mr Hamlyn was not inquisitive and did not ask questions. From his perspective, Mr Hamlyn had rejected or discarded the option of having radiation therapy. If there was any doubt, Dr Stanton says that he would have expected to see reference to that in the letter he drafted and, further, he considers it likely that he would have given Mr Hamlyn more time – perhaps another 2 or 3 weeks – to consider his position.

71. Dr Stanton said that he explained (again) the operation procedure. He reiterated his discussion of the risk of incontinence, the potential assistance that pelvic floor exercises might give Mr Hamlyn and the small risk of injury to the urethra and the low risks of bleeding and the need for a blood transfusion.

72. Dr Stanton was provided by his Counsel with a summary of Mr Hamlyn’s position, being that he had told Mr Hamlyn that there was a need for the prostate to come out and that if radiation therapy was performed but failed, he could not subsequently administer surgery. Dr Stanton said that there was no circumstance in which that could have been the sum total of his advice: he would never have said that it was impossible to take out the prostate after (unsuccessful) radiation therapy; only that it would have been much more difficult. If it was the case that he had not supplied radiation therapy as an ‘option’ for Mr Hamlyn, in Dr Stanton’s view, Mr Hamlyn would have been the first patient who complained about not having had that option presented. Dr Stanton added that he would have regarded it as bad practice not to present the options and also bad practice for him not to give the recommendation he did; in this case, for surgical treatment.

73. Dr Stanton was referred to his evidence of his discussions with his multidisciplinary team. There was no need for discussion amongst this team of treatment for Mr Hamlyn. So far as Dr Stanton was concerned, there was no need for any discussion with a radiation oncologist at all. That said, Dr Stanton stated that if Mr Hamlyn had asked him for a referral to see a radiation oncologist, he would have provided it to him. But, Dr Stanton added that in the circumstances here, where it was “obvious” that the patient was going down the surgical ‘track’, Dr Stanton would rely upon the patient to take the initiative to ask for a referral. He was confident that a radiation oncologist, if presented with Mr Hamlyn’s case, would also have recommended surgery for him.

Treatment on 2 May 2017

74. Dr Stanton indicated that because Mr Hamlyn was a pensioner, he was bulk-billed.

Other matters

Opinions on the alternative treatment of radiotherapy

75. Much of Dr Stanton’s cross-examination was directed to his reasoning process for ‘steering’ Mr Hamlyn down the path of surgery and not radiotherapy. Dr Stanton accepted that he had provided a recommendation for this kind of treatment; if perhaps implicitly.

76. Dr Stanton considered that the oncologists with whom he associated would not have reached any contrary view. Mr Hamlyn was not a ‘borderline’ case, where it was unclear as to what scope of treatment was unclear, and might have been the subject of debate amongst the multidisciplinary team.

Obligation to refer?

77. Dr Stanton disagreed with the proposition that it has recently become ‘best practice’, in this context, either for there to be a joint (or ‘concurrent’) consultation with urologist and radiation oncologist, or serial consultations with those specialists. Dr Stanton indicated that joint conferencing of this kind had actually been tried before and resulted only in an inefficient use of resources. As he understood it, it was only major tertiary areas where the practice existed. It was suggested that multidisciplinary assessment was appropriate. Dr Stanton disagreed with this in circumstances where the pros and cons of both forms of treatment were discussed. He believed that an oncologist was likely to say substantially the same things.

78. Dr Stanton’s view was that it was up to Mr Hamlyn to request oncologist’s opinion and to request for him to make a referral. That was appropriate given his age, the circumstance that his cancer was confined (to the prostate) and his confidence that an oncologist would agree with that course. It was put to him that he was simply speculating as to what an oncologist might say. Dr Stanton maintained that the oncologists he dealt with would have agreed with him. He rejected the proposition that he was obliged to provide a referral.

77. It seemed to be suggested that Dr Stanton did not refer Mr Hamlyn to an oncologist because he was concerned he might lose him as a patient. This was denied.

Availability of oncologists in Wagga in 2017

80. Dr Stanton said that there were no oncologists available in Wagga Wagga. Services of that kind could be obtained from the Riverina Cancer Centre. Mr Hamlyn’s Counsel later adduced evidence which indicated that radiotherapy centres may have been available (Exhibit I).

81. Dr Stanton said that if Mr Hamlyn was to have been referred to an oncologist, he would have needed to travel to and from Wagga Wagga or he would have had to take accommodation.

82. Under cross-examination, Dr Stanton did not disagree that in the event he wanted radiation therapy, the system was such that Medicare would absorb the cost beyond $1,000. Dr Stanton accepted that he would likely have been able to have obtained accommodation for only modest cost through the cancer centre.

CREDIT

83. I considered that Mr Hamlyn tried to give his evidence honestly. He projected as having a confident recollection of what occurred during his consultation, to the point where he was reluctant to concede the obvious proposition that his recollections of verbal conversations three and a half years ago were likely to be imperfect. This smacked of needless intransigence. Mr Hamlyn was exposed during cross-examination as giving internally conflicting evidence as to his recollections of what occurred in the crucial consultations in February and March 2017. This sapped his confidence in his ability to recall what was said. This demonstrated that his recollections of what occurred were, without contemporaneous evidence, lacking in reliability. He shifted his position on multiple occasions. This went to basic matters such as discussion about the fundamental risks of the procedure that he eventually consented to receive. Other detail could not be recalled. In fairness to him, one the central part of his testimony – that he was informed that if radiation therapy was unsuccessful, it would effectively preclude the effectiveness of alternative surgical treatment – was not so far apart from Dr Stanton’s position. The reliability of that part of his evidence did not necessarily depend upon the reliability of his recollection on other detailed matters.

84. I considered that Dr Stanton was a good witness. He listed carefully and responded to the particular questions raise of him. He accepted, unsurprisingly, that his actual recollections of what he said to Mr Hamlyn were limited to the point of non-existent and that he was ostensibly relying upon his contemporaneous correspondence and his standard practices for consulting patients of the profile of Mr Hamlyn. He was quite loquacious and I felt at certain times that his answers, though not non-responsive, exceeded what were necessary. There was a certain defensiveness to his testimony, not uncommonly observed from professionals in litigation of this kind, and it was clear that he wanted to leave the Court in no doubt as to what reasoning he deployed when consulting with Mr Hamlyn. I accept, though, that he was honest and reliable.

FINDINGS ON WHAT ADVICE & INFORMATION WAS GIVEN BY DR STANTON

85. Mr Hamlyn’s pleaded case was, relevantly, that Dr Stanton failed to advise him in respect to the availability of conservative modern radiation therapy and nuclear medicine treatment options as an alternative to the surgical option. That is, in substance, an alleged failure to provide information.

86. I accept Dr Stanton’s evidence that as at the commencement of 15 March 2017, Mr Hamlyn had resolved to proceed with surgery as the appropriate option. This was referred to in Dr Stanton’s letter of that date. It was not seriously disputed by Mr Hamlyn. That being so, I find that to the extent that Mr Hamlyn’s decision-making was affected by the content his discussions with Dr Stanton, it was the content of what was said by Dr Stanton on 15 February 2017, and particularly his recommendation and information supplied on that date, which was in issue. I would add that it was not suggested, and I do not consider, that the results of the radiological investigations conducted on 27 February 2017 or anything else that occurred since 15 February 2017 either did, or should have, caused Dr Stanton to revise or qualify the recommendation or information he supplied to Mr Hamlyn on 15 February 2017.

87. I accept the sincerity of Mr Hamlyn’s belief that he was informed by Dr Stanton on 15 February 2017 that if he elected to undertake radiation therapy, but, if that was ineffective, Dr Stanton could not subsequently perform surgery. I also accept the sincerity of his belief that if that was actually said, then a patient in Mr Hamlyn’s position would understand that – financial considerations and the period of recuperation aside – he would be better off choosing to take the surgical treatment, since the radiation therapy might still be available if the surgery did not work.

88. I am not, however, satisfied that Dr Stanton actually supplied that advice or information in the terms that Mr Hamlyn believes he did. Indeed, although the onus does not fall upon Dr Stanton to prove what was said, I find that, in this particular respect, it is more likely that what Dr Stanton said to Mr Hamlyn was that if the radiation therapy treatment was chosen but had proven ineffective to remove the cancer, then it would be more difficult for him to subsequently receive surgery.

89. Mr Hamlyn’s account of what he was told relies entirely upon Mr Hamlyn’s recollections which, as indicated, were in many respects very limited and not altogether consistent. In a similar context, the observations of McLelland CJ (in Eq) in Watson v Foxman (1995) 49 NSWLR 315 at 318 are apposite, in terms of the requirement of proving alleged words used to the tribunal of fact’s reasonable satisfaction and the difficulties of doing so as memory fades, and particularly in the context of litigation.

90. The reliability of Mr Hamlyn’s recollections of what he recalled being told on 15 February 2017 was also affected, in my view by the specific circumstances of his being informed of a diagnosis. That may or may not have been a complete shock to Mr Hamlyn, but it was news which would nonetheless have been emotionally disturbing. Further, in my view, it is also unsurprising if, notwithstanding the absence of detailed recollection of what he was formed, he nevertheless took away from the consultation on 15 February 2017 his perception that surgical treatment was what Dr Stanton had recommended to him, in preference to radiation therapy. It is another thing, however, to conclude, as Mr Hamlyn urges, that he was actually deprived of any real choice to consider and decide whether to have radiation therapy.

91. Mr Hamlyn’s account of the advice or information he said he received is not documented. It was not corroborated, as it might have been, had Kristie, his ex-partner, given evidence. It is unnecessary to consider, in this regard, whether a Jones v Dunkel inference should be drawn from her not giving evidence. There was no indication as to whether or not she was available to give evidence.

92. Further, Mr Hamlyn’s recollections do not accord with the probabilities. If, as Mr Hamlyn is asking the Court to accept, Dr Stanton had given him no choice but to ‘pull out’ the prostate, there would have been little reason for him to mention radiation therapy at all. That could only confuse and potentially alarm a patient in the circumstances. It is also inherently unlikely that a practitioner would seek to foreclose in a patient real consideration of an alternative form of treatment, so long as the material risks of such treatment were indicated.

93. Further, leaving aside the circumstance that I am not persuaded of the correctness of Mr Hamlyn’s account, I positively prefer Dr Stanton’s account of what was discussed in the 15 February 2017 consultation. Dr Stanton was very experienced in advising patients with prostate cancer about their options, and the pros and cons associated with each form of treatment; and especially the risks of what might follow from both forms of treatment. I expect that he would have developed something of a routine in this regard. There was nothing to show that his usual practice was not inapplicable on that date. Mr Hamlyn’s presentation was not exceptional: it had not been, for example, the subject of discussion between Dr Stanton and colleagues in his multidisciplinary team.

94. The expert urologists agreed on the basis of the instructions they respectively received, contrary to Mr Hamlyn’s account, the advantages and disadvantages of both forms of procedure were discussed.

95. These findings mean that on the part of the case that deals with negligent information or advice, concerning the alleged omission to indicate the availability of radiotherapy as a potentially alternative treatment to surgery, I have determined that Mr Hamlyn has not made out that case.

96. On the other part of Mr Hamlyn’s case, there is no dispute and I accordingly find that there was no discussion in the 15 February 2017 (or March 2017) as to:

1. the availability of specialist radiation oncological assessment; and

2. whether or not Mr Hamlyn should be referred for the assessment of a radiation oncologist.

97. Dr Stanton did not offer such a referral on 15 February 2017 and/or 15 March 2017. Mr Hamlyn did not make such a request on either of those dates. I accept Dr Stanton’s evidence that absent such request being made, in the circumstances, which included Mr Hamlyn conveying his clear instruction to have the surgery without any doubt, Dr Stanton did not think it was necessary to, and refrained from, recommending Mr Hamlyn be referred to a radiation oncologist.

EXPERT MEDICAL EVIDENCE

The expert urology evidence

98. Mr Hamlyn relied upon expert urological opinion evidence from Dr Phillip Katelaris. Dr Stanton relied upon expert urological opinion evidence from Dr Edward Korbel.

99. After conferencing on 6 October 2020, the experts prepared a joint report.

100. Dr Katelaris and Dr Korbel relevantly agreed that:

1. in 2017, Mr Hamlyn had significant lower urinary tract symptoms and a very large prostate;

2. active surveillance was inappropriate;

3. Dr Stanton discussed with Mr Hamlyn (in the presence of his ‘ex-wife’) the difference between radical prostatectomy (surgery) and external beam radiotherapy (radiation therapy);

4. Dr Stanton discussed the advantages and disadvantages of both forms of treatment;

5. Dr Stanton discussed the risk of incontinence and erectile dysfunction;

6. the plaintiff was told to go away and think of these options; and

7. Mr Hamlyn did not request from Dr Stanton a referral to a radiotherapist and neither Dr Stanton nor Mr Hamlyn considered that there was a requirement for such referral.

101. Though they did not say so, it appears that their opinions related to the discussions which occurred on 15 February 2017.

102. They jointly opine that:

1. it was within the competent professional practice of a urologist in 2017 to offer (or perhaps more accurately, recommend) surgery over radiotherapy; and

2. there was no negligence in failing to refer Mr Hamlyn to a radiation oncologist in the circumstances.

103. I note also that in a publication issued by Dr Katelaris, the plaintiff’s urology expert (Exhibit H), that expert opines that for “men with high-risk disease, radical prostatectomy remains the most effective treatment for disease-free survival”. Shortly thereafter, Dr Katelaris noted that external beam radiation therapy may be the best treatment option for patients who “have the disease that is localised but not confined to the prostate or who are unable to undergo surgery”.

104. Neither expert considered that they could opine on the quantification of damage or loss in the absence of a urodynamic study or performance of a cystoscopy.

105. Neither expert was called to give evidence.

The expert radiation oncology opinion

106. Mr Hamlyn relied upon expert opinion evidence from Associate Professor Sandra Turner dated 21 July 2019, which I admitted over the defendant’s objection. Professor Turner opined, with reference to a position statement published by the Royal Australian and New Zealand College of Radiologists in June 2018, that men approaching curative treatment for prostate cancer should be seen by a radiation oncologist as well as a urologist for the purpose of being able to make a fully informed decision regarding options for treatment; although she acknowledged that this statement did not represent a formally endorsed guideline. She considered, however, that urologists were not adequately trained in radiation oncology or up-to-date with modern radiation oncology technologies, outcomes and clinical trials so as to be able to fully inform a patient about the logistics, side-effects, benefits and costs, and available techniques for radiation therapy.

107. Based upon her reading of his medical records, Professor Turner considered that Mr Hamlyn had a high intermediate risk prostate cancer. She considered that it was likely that surgery or radiation therapy would yield equivalent outcomes in terms of the dual control of the disease, however reiterated that the treatment pathways, side-effects and costs may be very different for each of the treatments.

108. She considered that it would have been unlikely (less than a 5% chance) that Mr Hamlyn would have had permanent urinary incontinence requiring intervention after a course of radiation therapy to treat his prostate cancer; although in view of his moderately large prostate, she thought that it was possible he may have had some other lower urinary tract symptoms, including a slow stream. After radiation therapy, reduction of the size of the gland tended to improve pre-treatment obstructive symptoms. She noted that radiation therapy had a small risk of rectal side effects (approximately 5 to 7%) and the effects may have been more detrimental to Mr Hamlyn’s way of life than it would be to other patients. Both the treatments, however, contributed to sexual dysfunction.

109. Mr Hamlyn also relied upon a similar opinion from Associate Professor Robert Smee, another radiation oncologist. Again, he considered it “entirely appropriate” for Mr Hamlyn to have been referred to an assessment also from a radiation oncologist; although he acknowledged that the Urological Society of Australia and New Zealand did not mandate dual consultations. His view about dual consultation was perhaps more qualified than Professor Turner’s: Professor Smee did not “necessarily” consider that Mr Hamlyn had to be referred to an oncologist.

PEER PROFESSIONAL OPINION

Scope of the application of s 5O to the allegations against Dr Stanton

110. Because I have found that Dr Stanton did inform Mr Hamlyn of the availability of radiotherapy as an alternative form of treatment, it is unnecessary to consider s 5O of the Civil Liability Act (‘the s 5O Defence’) as it relates to the alleged failure to inform Mr Hamlyn of the availability of that other treatment. But I have found that there was: (a) an omission to inform Mr Hamlyn of the potential for him to receive a radiation oncological assessment, and (b) an omission to offer to refer, whether by request or unilaterally (that is, without reference to), Mr Hamlyn for radio-oncological assessment.

111. I proceed on the basis that where there is a question of whether s 5O arises, it should be determined in advance of the issues of breach of duty (and other ‘liability’ issues) which are determined in accordance with ss 5B and 5C of the Civil Liability Act. This is because, where it applies, s 5O alters the standard of care[1] .

     1. South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513 per Leeming JA (Basten JA and Meagher JA agreeing) at [119]-[127].

112. I shall say something now about the scope of the provision. The provision is pleaded in paragraph 12 of the Amended Defence. Relevantly, save for an inconsequential reference to Dr Stanton’s performance of the cystoscopy on 16 December 2016, the s 5O limitation had been pleaded entirely with reference to advice and information which Dr Stanton supplied to Mr Hamlyn on 15 February 2017 and 15 March 2017.

113. However, on the last day of the hearing, during closing addresses, leave was granted to Dr Stanton to add that the s 5O standard was also applicable to the case that he failed to refer, or offer to refer, Mr Hamlyn for a specialist radiation oncologist’s assessment.

114. I will deal first with the suggested application of the s 5O standard to the plaintiff’s case in respect to the alleged negligent omission to inform Mr Hamlyn as to the possibility that he might obtain a specialist radiation oncologist’s assessment.

115. In my opinion, that argument can simply be rejected on the basis that, by s 5P, the s 5O standard is excluded in cases where it is said that liability arises from the provision of information. It is true that the plaintiff did not plead s 5P in his Reply, but in my view, he should not be prevented from doing so. When I raised this provision during addresses, Counsel for the defendant did not suggest the plaintiff could be shut out from relying upon it. By its terms, the provision is prohibitive in nature and it is an essentially legal answer to the application of s 5O. Properly construed, s 5P carves out an exception to the applicability of s 5O where the negligence arises from the provision of information or advice relating to personal injury associated with the provision of a professional service. This view is plainly centred on the text. Further, it is supported by context. In Rogers v Whitaker, the High Court distinguished the standard of care for diagnosis and treatment, on the one hand, and the provision of advice and information to the patient on the other[2] . The Ipp Committee’s recommendations in the Review of the Law of Negligence Final Report (September 2002) drew a dichotomy between complaints founded upon negligent advice/information/warnings and negligent treatment and considered that the ‘Bolam’ rule[3] should be applicable to the negligent treatment cases. Its recommended formulation of the Bolam rule was, in its terms, limited to “treatment”. The Ipp Committee made separate recommendations about the content of information, advice or any recommendation (see [3.1] & [3.35]-[3.70] of the Ipp Committee’s report)[4] . This context suggests that the subject matter of s 5O (in the medical practitioner context) concerns diagnosis and treatment. I note also that from my brief researches of the Court of Appeal’s decisions concerning s 5O, these cases deal with the nature and extent of treatment supplied by medical practitioners [5] .

     2. (1992) 175 CLR 479 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at 489 and per Gaudron J at 493.

     3. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 587.

     4. Under English law, the ‘Bolam’ principle has subsequently been held by the Supreme Court as not being applicable to ‘advice’ or ‘information’ cases: Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [87]. See also Walmsley, Abadee, Zipser & Sirtes, Professional Liability in Australia (3rd ed, Lawbook Co, 2016) [2.500], p 281.

     5. See the New South Wales Court of Appeal website.

116. I therefore find that s 5O would not have been applicable to the part of the case concerning the provision of negligent information. To the extent that the decision remains consistent with the requirements of Part 1A Division 3 of the Civil Liability Act 2002 (NSW), it is the common law and, especially, the High Court’s decision in Rogers v Whitaker (1992) 175 CLR 479 will continue to govern the standard of care for liability for negligent advice or information cases [6] . That is to say, the views of a respectable body of professional information as to what information, advice or warnings should be supplied to a patient will be relevant, but not conclusive, of whether the standard of care has been complied with[7] .

     6. In Queensland v Masson [2020] HCA 28 Nettle and Gordon JJ at [133] referred to Rogers v Whitaker as remaining authoritative in cases where liability is to be determined in accordance with the general law.

     7. Rosenberg v Percival (2001) 205 CLR 434 at [7].

110. I now turn to the application of the s 5O standard to Mr Hamlyn’s case that Dr Stanton negligently failed to refer him for a radiation oncologist’s assessment.

111. In my view, the same result applies to the particular of negligence regarding the omission to inform. That should not be surprising: the requirement to identify available radiation oncologist assessment might be expected to precede an offer to refer a patient for such assessment. The point of a referral to an oncologist is for Mr Hamlyn to receive further information. The conduct (in this respect an omission) is not associated with the provision of a diagnosis or treatment which is the subject matter of s 5O, but is associated with the provision of information, which is addressed in s 5P.

BREACH OF DUTY OF CARE/COMPLIANCE WITH CARE AND SKILL GUARANTEE

119. It is common ground that Dr Stanton owed Mr Hamlyn a duty to exercise care in the provision of information.

120. Whether Dr Stanton was in breach of his duty of care for the action in negligence turns upon the application of ss 5B and 5C of the Civil Liability Act. Mr Hamlyn must establish that the risk that he might suffer the harm he complains of was foreseeable and not insignificant and, further, that, in the circumstances, Dr Stanton failed to take the precautions that a reasonable urologist in his position would have taken to avoid the risk.

‘Risk of harm’

121. By paragraph 2 of his Statement of Claim, as amended, the plaintiff characterised the risk of harm in terms of a ‘loss of opportunity to pursue modern conservative and less invasive and non-surgical oncological treatment modalities’. I find it difficult to understand that this is a risk of harm, as distinct from an alleged form of loss or damage.

122. In his closing address, Counsel for the plaintiff identified the risk as being the exposure of the patient to the greater than necessary risk of injury arising from complications from the recommended form of treatment in circumstances where there was an alternative, more conservative, form of treatment which was available. His alternative formulation was put more simply – the risk of ‘misprescription of treatment’.

123. Whilst there may not be any exclusive notion of a risk of harm, I am not satisfied that either of these formulations is sufficient. They are both untethered from the plaintiff’s real complaint. Mr Hamlyn does not allege that it was negligent for Dr Stanton to recommend surgical treatment. Nor was it Dr Stanton’s responsibility for deciding what treatment Mr Hamlyn should receive. Though it would doubtless be materially influenced by what Dr Stanton informed or advised him, ultimately the decision as to which of two forms of treatment (with a similar expectation of success in removing the cancer) which Mr Hamlyn should receive was a matter for him, in the exercise of his personal autonomy. Further, it is simplistic to say that radiotherapy was less ‘invasive’ or ‘more conservative’ than surgery. Those are simply epithets. Further still, it is not clear that the risks or complications which came home could have been avoided altogether even if radiotherapy was the form of treatment selected. In this way, the plaintiff’s identification of the risk of harm presents a false dichotomy.

124. Counsel for the defendant identified the risk as ‘the risk of undergoing surgery’. I consider that the identification is correct so far as it goes to the risks of that form of treatment, but is insufficient to address a complaint by a patient that he was inadequately informed about his treatment options. If the situation was of the kind seen in Rogers v Whitaker, where the patient’s choice was between undergoing treatment and not undergoing treatment, then I would accept the defendant Counsel’s formulation. But the choice here was of two alternative forms of treatment which, the evidence indicated, was likely to be equally efficacious in removing the cancer.

125. It has been said that the risk of harm must identify the source of the injury and the general causal mechanism of the injury[8] .

     8. For example, Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [43].

126. I consider that the ‘risk of harm’ was that Mr Hamlyn might suffer the complications materializing from one form of treatment to remove prostate cancer in circumstances where there was an alternative form of treatment which, had it been administered, was expected to be equally effective in removing the cancer.

127. Viewed in that way, the question is what reasonable precautions were required of a reasonable urologist in Dr Stanton’s position to take steps that would practically put Mr Hamlyn in a position where he was reasonably informed as to what course of treatment he should elect to have administered to him.

128. I find such risk of harm to be both foreseeable and not insignificant.

Prospective inquiry

129. As indicated, the Court had placed before it certain material from professional associations post-dating the events in question.

130. Issues of breach of duty are considered prospectively; not retrospectively[9] . That means that when assessing whether Dr Stanton’s conduct accorded with the reasonable precautions of a urologist in his position, his conduct is assessed by the available precautions (i.e. practices) known in February and March 2017.

     9. Vairy v Wyong Shire Council (2005) 223 CLR 422; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31].

Mr Hamlyn’s argument

131. Dr Stanton pointed out the disadvantages and advantages of both forms of treatment to Mr Hamlyn. Mr Hamlyn argues that this precaution was insufficient as the response of a reasonable urologist. This is not a case, of course, where Mr Hamlyn had the choice of undergoing no treatment at all, or at least none other than ‘surveillance’. He needed some treatment. There is no dispute that surgery and radiotherapy were his only real options.

132. Mr Hamlyn argues that there was a well-known (or least known to Dr Stanton) ‘turf’ war between radiation oncologists and urologists as the most suitable treatment for prostate cancer. But he argued that either form of treatment was likely to be equally effective in removing the cancer. That meant that in determining what was more suitable for Mr Hamlyn, it boiled down to the potential side-effects for the patient from each form of treatment. Although a urologist, like Dr Stanton, could provide information as to the side effects of radiotherapy, he was not as well qualified to do as a radiation oncologist. Mr Hamlyn should have been informed of this fact and informed that, in the circumstances, a radiation oncologist assessment was available [10] . Counsel for Mr Hamlyn said that his client was ‘unsophisticated’ and in the circumstances that occurred, Dr Stanton took a not unreasonably ‘paternalistic’ approach of effectively making the decision for his patient. Not surprisingly, as a trained and experienced urologist, he ‘steered’ Mr Hamlyn towards surgical treatment. But he did so without informing him of the possibility of his seeking the perspective of a different specialist, a radiation oncologist, who inevitably was more qualified to expound on the benefits and potential risks of complications arising from radiotherapy and ADT (which Counsel accepted was a necessary adjunct to the radiotherapy).

     10. This was evidenced by Exhibit I.

133. Counsel for Mr Hamlyn in his address disclaimed the proposition that Dr Stanton should have refrained from saying anything at all about radiotherapy: any knowledge he might impart to Mr Hamlyn on the treatment of radiotherapy was ‘better than nothing’. This was consistent with Mr Hamlyn’s pleaded case [11] , which relevantly involved the suggestion that, though a urologist, Dr Stanton was obliged to provide advice and information about both options. To argue for that proposition would also be contrary to the content of the Urological Society of Australia and New Zealand’s media release issued in June 2018, in which the view was expressed that urologists have a ‘critical’ role to play in discussing radiation options and counselling men about the risks and benefits of both forms of treatment. Further, Mr Hamlyn’s own expert urologist, Dr Katelaris, opined that it would have been “usual” for Dr Stanton to detail the advantages and disadvantages of each treatment modality.

     11. Particulars (d) and (e) to paragraph 7 of the Amended Statement of Claim.

Dr Stanton’s submission

134. Dr Stanton submits that the relevant peer urological opinion, co-incidentally supported by Associate Professor Smee (if not Associate Professor Turner) was to the effect that the only reasonable precaution in response to the risk was to give advice as to the relative advantages and disadvantages of the two respective treatment options. This was what was done and that was a complete answer.

The ‘negligent information’ case

135. This part of Mr Hamlyn’s case concerns Dr Stanton’s omission to indicate the availability of specialist radiation oncological assessment. Counsel for the defendant submitted that any discussion about radiotherapy as an alternative form of treatment necessarily implied an indication that such assessment was available. Though that argument has some force, I do not accept that after consulting with Dr Stanton on 15 February 2017, Mr Hamlyn would (actually or reasonably) have understood or assumed that he could have obtained an assessment from a practitioner of a different speciality. It is also at odds with Dr Stanton’s position that, if required by his patient, he would assist with arranging a referral for such assessment.

136. Section 5B of the Civil Liability Act requires consideration of whether the defendant has exercised reasonable care: not the elimination of risk. The terms of s 5B(2) require the Court to consider a non-exhaustive list of factors.

137. In relation to s 5B(2)(a), I find that the likelihood that Mr Hamlyn might suffer complications from surgery of the kind experienced was not very high. Principally, Dr Stanton assessed the likelihood of urinary incontinence as being in the order of 2 to 3%. Nevertheless, that is not insignificant in a context where there was an alternative form of treatment to remove the prostate cancer.

138. In relation to s 5B(2)(b), disregarding causal considerations, the harm is the materialisation of the risk of complication from surgery. This is, principally, urinary incontinence and bowel motions. These harms are not to be underestimated in terms of their physical or mental effects on a patient, but I consider that it is also fair to say that in relation to the former, the effects are expected to reduce over time and in both cases, they can be managed.

139. In relation to s 5B(2)(c) and 5C(a), it was not personally very burdensome for Dr Stanton to have identified as available and then assisted Mr Hamlyn to obtain assessment from a radiation oncologist. However, as Dr Stanton pointed out, when he identified his experience of ‘inefficiencies’ in consultations with different professionals, there is a cost to be borne in the implementation of the suggested measure. There is cost to the public health system and there is a diversion of the resources of health professionals; to the potential detriment of other patients (if not also taxpayers). As will be noted further below, Dr Stanton’s viewpoint, in this regard, appears to be shared by the Urological Society.

140. I do not regard s 5B(2)(d) as carrying much significance in the context of medical treatment for a disease.

141. I have referred already to s 5C(a). Section 5C(b) may have some significance. It indicates that just because the harm would not have eventuated had something been done differently does not give rise to or effect liability for the way the thing was done. Just because Dr Stanton may have ‘steered’ Mr Hamlyn towards surgery as the preferred form of treatment, by which certain complications materialized, does not give rise to liability in the happenstance that Mr Hamlyn may have received radiotherapy which was equally likely to remove the cancer, but which, if it had been administered, may or may not have resulted in complications being sustained. This was not a case where one form of treatment had one or more risks, but the other did not[12] .

     12. Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 per Young CJ (in Eq) at [540]-[542].

142. As noted, the factors in s 5B(2) are not exhaustive. In a case of professional negligence, it has long been recognised that the “general practice of prudent men is an important evidentiary fact”[13] . In the particular context of professional negligence cases centred around a complaint of lack of information, it is also important to reiterate the point from Rogers v Whitaker ^[14] that is it not the viewpoint of the profession that dictates the standard of care in the provision of information.

     13. Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 589.

     14. (1992) 175 CLR 479 at 487.

143. Nevertheless, since the standard of care ultimately requires comparison between the defendant’s conduct and how a person (i.e. another urologist) would have acted in a similar situation, proof that information supplied falls short of reasonable standards that is cogently demonstrated by another professional in the same field as the defendant is persuasive in formulating an opinion as to what information a reasonably competent professional in Dr Stanton’s position would provide. Had that been done, the Court would have been in a position to compare the content of the advice and information Dr Stanton gave against an objective standard of what should have been the content of the advice or information given.

144. Mr Hamlyn did not adduce evidence from an expert urologist to the effect that a reasonably competent urologist in Dr Stanton’s position (with the knowledge he had of Mr Hamlyn’s circumstances) would have informed Mr Hamlyn of the availability of specialist radiation oncological assessment. Mr Hamlyn’s own urology expert, Dr Katelaris, did not give evidence to that effect. To the contrary, he opined that “should the patient request an opinion from a radiation oncologist the supervising urologist should facilitate it”. Dr Katelaris endorsed as reasonable urological practice a urologist explaining the advantages and disadvantages of both forms of treatment. So, too, did Dr Korbel. This is what Dr Stanton did.

145. Effectively ignoring or disregarding Dr Katelaris’ opinion, Counsel for Mr Hamlyn urged instead that Professor Turner’s opinion should be preferred. Professor Turner is a radiation oncologist. Her view, in which she was supported by Professor Smee, was that it is “best practice” for patients to be seen by both specialists. But when one carefully reads her evidence (Exhibit A), and that of Dr Smee (Exhibit D), it is notable that neither say that Dr Stanton, or a urologist in his position, should have informed Mr Hamlyn that, in addition to informing Mr Hamlyn of the advantages and disadvantages of radiotherapy, including also a description of the risks or complications of that treatment, a radiation oncological assessment was also available for him. Neither do either of the Position Statements referred to by Professor Turner. They refer to ‘best practice’ for patients to see both a urologist and a radiation oncologist, but do not suggest that it is incumbent upon a urologist to indicate or recommend such referral.

146. The views of Professors Turner and Smee were that it was inherently desirable for practitioners (with a different specialty to their own) to opine so that a patient can be fully informed. But even as at June 2018, over a year after the impugned conduct, there was hot dispute between the respective professional associations, or a ‘turf war’ as to whether it was ‘best practice’ for a patient to be referred to both kinds of specialist. In the Position Statement of the Royal Australian and New Zealand College of Radiologists (‘RANZCR’) (June 2018), one of the two publications linked to Professor Turner’s report and to which she made reference, the statement is made that:

“Information should, if at all possible, be given by relevant specialists: best practice is that a man considering curative treatment for prostate cancer sees a urologist and a radiation oncologist to discuss his treatment options.”

147. The media release issued by the Urological Society of Australia and New Zealand in response to that Position Statement indicated that society’s disagreement with RANZCR’s statement that all men must see both a urologist and radiation oncologist to be fully informed, as there was no evidence that this recommendation was best practice. The document indicated (as at June 2018) that although the Urological Society encouraged men to seek second opinions (including from radiation oncologists) so that they were fully informed before making decisions, “If however, patients feel that they have received a thorough explanation of all treatment options by their treating urologist, and do not want nor require further counselling prior to making an informed decision, then additional consultations may not be necessary and would not constitute best practice”.

148. It is pertinent to again emphasise that these statements were expressed after the events affecting Mr Hamlyn. That circumstance does not enhance his case. Counsel for Mr Hamlyn suggested a developing convergence of view about the desirability of dual consultations, but that was not even apparent in 2018 when these documents were published, much less in February or March 2017.

149. However, such statements, made in the context of what Counsel for Mr Hamlyn called a ‘turf war’ did not amount to guidelines (something Dr Turner conceded). They were no more than policy or perhaps even aspirational statements advanced on behalf of the RANZCR. Counsel for Mr Hamlyn submitted that Dr Stanton might, indirectly, have been aware of this Position Statement advanced by the association representing radiologists. It is another thing, however, to say that a urologist in Dr Stanton’s position was responsible for ensuring compliance with a Position Statement issued by RANZCR, which had not even attained the status of a guideline, being an association of professionals of which he is not a member.

150. More broadly, to suggest, as Mr Hamlyn does, that Dr Stanton’s conduct is to be adjudged against the views of radiation oncologists, in my view, is to invite departure from well-established authority that the standard of care of a professional is generally to be measured against what a reasonably competent professional of the same speciality, in Dr Stanton’s position, that is, the reasonably competent urologist, would have done[15] . Those standards are undoubtedly shaped, amongst other things, by professional standards and binding guidelines applicable to urologists.

     15. Rogers v Whitaker (1992) 175 CLR 479 at 483 & 487; Queensland v Masson [2020] HCA 28 at [10], [133], [138].

151. Although they may not be conclusive on the question of the standard, no evidence was adduced of professional standards emanating from Dr Stanton’s professional association, the Urological Society of Australia and New Zealand, which were current in February and March 2017, indicating any requirement that urologists who consult with patients with prostate cancer about their treatment options should provide to their patients advice or information as the availability, or the desirability, of their patients receiving radiation oncology assessment. Whatever one might make of a media release (Exhibit 4) as an indication of a professional association’s ‘view’, the Urological Society’s media release of 12 June 2018 indicates that at a time post-dating the events in this proceeding, the society positively rejected the notion of any requirement for a urologist, of his or her own initiative, suggesting an additional consultation with a radiation oncologist. This was because:

“…additional opinions are potentially costly to the health system and the patient, may lead to patient inconvenience especially in regional and rural areas, and may be unwanted by the patient if they do feel adequate information has been provided to them at their initial and subsequent consultations.”

179. In fairness to her, Professor Turner was not actually asked what was, or were, the side effects of radiotherapy and ADT, being the alternative course(s) of treatment.

180. Further and finally, I accept the evidence of Dr Stanton that for a patient with Mr Hamlyn’s profile, the radiation oncologists that he knew of in the region (among whom Mr Hamlyn would likely have received the second opinion) thought that Mr Hamlyn presented a clear-cut case for surgery – in effect, that such assessment as he would obtain from an oncologist would not be substantially different in effect. I agree with the submission of the defendant’s Counsel that this is not inadmissible opinion evidence as such. It was predictive evidence.

181. To be sure, Dr Stanton’s evidence in this respect was far from definitive. He was referring to his experience of the likely attitudes of oncologists in the setting of a multi-disciplinary setting; and not a private, one-on-one consultation. Nevertheless, the problem remains for Mr Hamlyn that he did not call any persuasive evidence from a radiation oncologist, on the basis of Mr Hamlyn’s profile, as to what s/he would have said in such private consultation. I did not regard the evidence of Professor Turner or Professor Smee, in their respective reports, as purporting to provide evidence of what they would have said (or a reasonable radiation oncologist would have said) in the hypothetical situation of supplying Mr Hamlyn with an assessment.

182. In my opinion, on the state of the evidence before the Court, it is too speculative an exercise for the Court to piece together a full picture of the pros and cons of Mr Hamlyn undergoing radiotherapy (and ADT) that would have been supplied by the hypothetical reasonably competent radiation oncologist; in order to draw a comparison with the account that Dr Stanton provided to him.

183. As a final point in relation to the second step of the factual causation test, it cannot be circumvented by Mr Hamlyn arguing (as is apparently contended in his pleading) that he lost the opportunity to receive an assessment that might have been different. At any rate, there is no proof that there was a substantial prospect that the hypothetical advice of a radiation oncologist would have been different[20] .

     20. Badenach v Calvert [2016] HCA 18 at [36]-[41] and [98]-[99].

The third step of the factual causation argument

192. If I am wrong about the failure to establish the first and second steps, then a further problem for Mr Hamlyn concerns the third step required to make good the factual causation argument, concerning what he would have done if he had received the information from a radiation oncologist different in substance to what Dr Stanton had supplied to him. Mr Hamlyn was, in this regard, hampered by the circumstance that any evidence he gave would be inadmissible (unless it amounted to an admission) under s 5D(3) of the Civil Liability Act. (Such evidence was admissible under the common law, although it was habitually discounted for its lack of weight.) But the usual difficulty that applies to claimants because of this provision is exacerbated in this case: Mr Hamlyn not only needs to demonstrate material differences between the information he received from two specialists, but also demonstrated that, being in conflict, why he would have acted upon the view of the hypothetical radiation oncologist to Dr Stanton.

193. But there were other ways for Mr Hamlyn to prove this step in the chain of factual causation. In Neal v Ambulance Service of New South Wales [2008] NSWCA 346 at [50], Basten JA indicated the sort of evidence that might be admissible from a claimant, including the claimant’s conduct at about the relevant time; evidence as to how he may have felt about particular matters; evidence from other people in a position to assess the claimant’s conduct and his apparent feelings or motivations; and other matters influencing the plaintiff. Conceivably, it would have been open, say, for Kristie, had she been called, to give evidence as to any deliberations disclosed to her by Mr Hamlyn.

194. The circumstance, as at the middle of February or the middle of March 2017, that Mr Hamlyn had only recently undergone a knee replacement is not, in my view, of major significance. He did not say in his evidence that, following knee surgery, he had developed a fear or general aversion to surgical procedures. Evidence of that kind would not have been prohibited by s 5D(3)(a) of the Civil Liability Act. To the contrary, there were indications that he was planning to have knee replacement procedure on his other knee (T 7). As was also pointed out by the defendant, Mr Hamlyn’s main concern about surgical treatment was “how long (he)’d be in hospital for”.

195. The circumstance that he is overweight or has diabetes is not an indicator of a natural inclination to have radiation therapy, since the Cancer Council publication indicates that an increased risk of diabetes and obesity was a side-effect of the ADT which, Counsel for Mr Hamlyn accepted, was a necessary adjunct to radiotherapy. It may have been the case, as his Counsel suggested, that he may have avoided the risk of infection attending surgery, by receiving radiotherapy, but he gave no evidence of being fearful of that particular matter and there was no suggestion that such a risk, if it materialized, could not be managed by antibiotic treatment administered to him in hospital.

196. The rectal bleeding that was sustained and the on-going bowel problems were identified risks of radiotherapy, just as they were for surgery.

197. I do not regard the issue of Mr Hamlyn’s financial resources as being a relevant factor in this case. He could have afforded it through the public health system. I am also unable to ascribe any decisive weight to the circumstance that surgical treatment might have been a shorter process than the process of undergoing radiotherapy. It was not suggested that in the first half of 2017, Mr Hamlyn had pressing commitments which would have inclined him to wish to get the treatment over and done with quickly even if – which was not the case – it could be guaranteed that surgery would be quick.

198. To reiterate, I find that Dr Stanton did explain to Mr Hamlyn that the advantage of surgery over radiation therapy was the ability for radiotherapy to serve as a fall-back should the surgery not succeed in removing the cancer. Mr Hamlyn erroneously interpreted Dr Stanton to say that surgery would be “impossible” if radiotherapy was tried first (when, in truth, it only would have been more difficult), but in my opinion, the exchange between the two left a firm impression in Mr Hamlyn’s mind that, all other things being equal, it was preferable to him to have a practicable ‘salvage’ fall-back in case one of the forms of treatment was not initially successful. As I have said, there is no evidence to indicate that what Dr Stanton said to Mr Hamlyn in this regard was inaccurate or incomplete. I regard this factor as being very significant on the issue of factual causation.

199. I am not persuaded that had he received information from a hypothetical reasonable radiation oncologist, the potential benefits and risks of complication of radiotherapy (and ADT) would have been much more appealing to him, in comparison to the account of the advantages and disadvantages of radiotherapy given to Mr Hamlyn by Dr Stanton, that he would have chosen to have received that form of treatment.

The fourth step of the factual causation argument

200. This final step requires Mr Hamlyn to establish that he was more likely than not to have received a beneficial outcome from radiotherapy (and ADT) than the outcome from surgery. In this respect, it is not enough for Mr Hamlyn to say he lost the chance, or opportunity, of avoiding the injuries of which he now complains by electing to have radiotherapy. He must prove, on the balance of probabilities, that he would have avoided them had he had radiotherapy (and ADT)[21] . Professor Turner expressed a view to that effect, in her answer to question (f), but beyond a cross-reference to the RANZCR’s Position Statement linked to her report, she did not indicate reasoning to support that opinion. I was not able to locate objective information in the RANZCR Position Statement that would support her view. Accordingly, I ascribe very little weight to Professor Turner’s view because of its lack of transparency in its reasoning.

     21. Tabet v Gett (2010) 240 CLR 537.

201. In the Cancer Council publication supplied to Mr Hamlyn (Exhibit 3), urinary and bowel problems were identified as side effects of external beam radiotherapy. As to the former, it was said that radiation was unlikely to cause incontinence, but it could cause ongoing bleeding. As to the latter, it was said that some men may bleed when passing a bowel motion, caused by damage to the fine blood vessels in the lower bowel.

202. Professor Turner assessed the prospect that Mr Hamlyn stood a less than 5% chance of permanent urinary incontinence. She assessed him as having a 5-7% risk of rectal side effects. I agree with the defendant’s submission that these percentages are very significant in the present context.

203. By comparison, Dr Stanton recorded in his letter to Mr Hamlyn’s general practitioner on 15 February 2017 that he assessed Mr Hamlyn as having a 2-3% risk of permanent incontinence.

204. There was clearly no guarantee that by electing to have radiotherapy and ADT, that Mr Hamlyn would have not suffered incontinence and bowel problems of the kind he has endured since the surgery. I am not persuaded that if he chose radiotherapy (with ADT) over surgery, it was more likely than not that he would have avoided the incontinence and bowel problems which have been endemic since May 2017.

205. It is true that he would have avoided the more immediate effects of the complications, which were addressed in the 5 week period of hospitalisation after the surgery in May 2017. But that detriment has to be weighed against the distinct detriments potentially associated with radiotherapy, including fatigue and radiation cystitis.

206. I am not persuaded that qualitatively or quantitatively, Mr Hamlyn would have been better off undergoing radiotherapy and ADT than he was by receiving surgery.

207. Accordingly, even if I had found a breach of duty, Mr Hamlyn has not established factual causation. It is unnecessary to consider Dr Stanton’s secondary argument that the scope of liability requirement for causation has also not been established.

DAMAGES

Injuries & disabilities

Physical injury

208. Counsel for the defendant noted that Dr Katelaris, Mr Hamlyn’s urology expert, suggested a range of investigations (a urodynamic study and cystoscopy) be undertaken as to how he might treat what he identified as his bladder impairment. Dr Korbel agreed with this view during the course of the experts’ conference. But there was no evidence that this was followed through by Mr Hamlyn. Counsel noted that the plaintiff had seen a range of urologists (other than Dr Stanton) but did not adduce evidence as to what they had found. Counsel referred to Mr Hamlyn’s refusal to follow through with a referral for him to have a sling procedure. In such circumstances there was little evidence to determine, objectively, the precise current nature and prognosis for Mr Hamlyn’s urinary impairments. These were matters for which Mr Hamlyn was required to prove.

209. I accept that Mr Hamlyn suffers from what Dr Katelaris describes as an impaired bladder function as a complication following surgery, generating urinary incontinence.

210. I accept the evidence of Dr Byrne that the surgical event is not responsible for the faecal incontinence.

211. I accept that there is no opinion evidence of his prognosis. However, Mr Hamlyn has referred to issues with his urinary incontinence has continued unabated, since 2017 to the present day. In the absence of expert evidence, I am prepared to infer, and I so find, that his issues associated with that disability will continue for the duration of his life.

212. As Counsel for the defendant recognised, there was no plea by Dr Stanton of any failure by Mr Hamlyn to mitigate his injury, such as by depriving himself to have his condition further investigated and/or refraining from subjecting himself to the sling procedure which Dr Stanton had discussed with him in July 2018 or other forms of treatment[22] . That relieves me of the need to determine whether, as his counsel submitted, he has been justified in not pursuing further surgical treatment which may or may not helped to remove or alleviate the symptoms of his disability.

Mental health

22. Watts v Rake (1960) 108 CLR 158 per Dixon CJ at 159.

213. Mr Hamlyn relied upon the expert opinion evidence of Dr Ben Teoh, a consultant psychiatrist, who prepared a report dated 23 March 2020. Dr Teoh indicated that Mr Hamlyn had had no past history of psychiatric illness. He diagnosed a Chronic Adjustment Disorder with Depressed Mood and Alcohol Use Disorder; whose symptoms (generally a preoccupation with negative thoughts – including fleeting suicidal ideation) were related to an emotional reaction to his treatment for prostate cancer. As his condition had become chronic, his prognosis was poor.

214. In response, Dr Stanton relied upon the expert opinion of Dr Doron Samuel, a clinical and forensic psychiatrist. Having regard to Mr Hamlyn’s history, he found strong historical elements, that is, a pre-existing Antisocial Personality Disorder. As part of his examination, he reported that Mr Hamlyn had informed him that he had not sought psychological treatment since the surgical event he complains of and he acknowledged that his drinking had contributed to some of his problems. Dr Samuel noted his periods of incarceration and substance misuse (amongst other things). He did not regard Mr Hamlyn as having any ‘mental health’ condition, and certainly none associated with complications from the surgery; or any need for treatment for mental health; save as for engagement with a drug and alcohol counsellor. His psychological issues did not impinge upon his capacity to engage in normal domestic or social activities.

215. Neither of the psychiatrists were required to attend for cross-examination. They did not confer in an attempt to narrow their difference in opinions and produce any joint report.

216. Although I accept that Mr Hamlyn was likely to have experienced anxiety and distress, and to some extent, continues to experience anxiety consequent to the risk of incontinence in public, I am not convinced that his mental state has developed into a recognisable psychiatric disorder attributable to the surgical event.

217. In his closing address, Counsel for Mr Hamlyn fairly did not press that he had sustained any real psychological injury beyond the ordinary stress and anxiety from his physical ailments.

Non-economic loss

218. The plaintiff claims this head of damage at a proportion of 40% of a most extreme case. The defendant submits that he would only be entitled to damages under this head at 20% of a most extreme case.

219. Mr Hamlyn was asked very little about any practical aspects associated with his psychological condition compared to what it was prior to the surgery. He said in his evidence that since the surgery, he has yelled a lot. He said that he has experienced self-harm ideation. He says he has dropped drinking beer which was not insignificant against the background of his being an alcoholic.

220. Counsel for Mr Hamlyn emphasised his 5-week period of hospitalisation, prolonged suffering of urinary incontinence, which naturally is a condition apt to diminish a person’s morale and cause periodic anxiety (particularly when it arises in public places) and the restriction upon his conducting physical activities. Counsel argued that the surgical event had generally been destructive of his independence. In my view, that submission neglects other circumstances which have had that result, such as his obesity and past alcoholism which have played a contributory role in his present circumstances.

221. Neither party supplied to the Court any authorities to establish any ‘tariff’ for injuries or disabilities of the kind Mr Hamlyn has suffered (s 17A of the Civil Liability Act).

222. I would have assessed his non-economic loss at being at 30% of a most extreme case. That would amount to the sum of $158,010.

Past out of pocket expenses

223. The plaintiff said that he needs to use 3-4 pads each day. A pack containing 8 pads costs $15.

224. Since the surgical treatment, he has used a cream to alleviate rashes on his thighs and around his genitalia. This cream usually lasts for 3 months and costs $90. He is not taking any other medications.

225. Counsel for the defendant submits that Mr Hamlyn would not be entitled to receive anything more than $5,000.

226. I prefer and accept Mr Hamlyn’s Counsel’s submission that allowance might be made for $75 a week for 3 years, yielding a notional allowance of $13,650.

Future out of pocket expenses

227. The plaintiff is 65 years of age.

228. The plaintiff claims future treatment, as a buffer, for the sum of $75 per week. Given the plaintiff’s life expectancy and with the 5% discount, that yields a sum of $48,750.

229. Counsel for the defendant submits that Mr Hamlyn is entitled to no more than $1,000 and only as a buffer. This was based on the defendant’s contention that there was no expert proof of his prognosis. However, in the absence of any pleaded suggestion that he had acted unreasonably in failing to subject himself to further investigation and receive the treatment that Dr Stanton, or other urologists, had recommended to him, I accept that the current symptoms he complains of will continue in the future. Such allowance as is made should contain the discount for contingencies that other circumstances may contribute to the symptoms.

230. I accept the allowance as submitted by Mr Hamlyn.

Past care and assistance

Mr Hamlyn’s evidence

231. Prior to his surgery, Mr Hamlyn said that he could more actively engage in physical activity. This included carrying firewood (to prepare fires for heating), and lawn-mowing. He also used to do maintenance on his car.

232. He says he now receives the assistance of one of his daughters, Kyla to provide the cooking and bring in the firewood. This is because he can no longer bend down and apply a chainsaw. He can no longer do maintenance on his car, as he was not able to get down on his knees or lie under the car. Nor can he lift. He is, however, able to do some vacuuming and put rubbish bins out every now and again. He said he does not know what he will do should Kyla not be in a position to continue to provide such assistance.

233. When Dr Stanton’s occupational expert, Ms Dinley visited his home, it was, he said, in a different condition to that which it was in before the surgical treatment.

234. In cross-examination, Mr Hamlyn was referred to Ms Dinley’s report of being told by him that he was in receipt of a disability support pension due to bilateral knee problems and generalised osteoarthritis. Mr Hamlyn indicated that so far as he was concerned, he was in receipt of this pension because of his past alcoholism. But he accepted that after being involved in an accident regarding his motor bike (which he had mentioned to Dr Samuel) that he has previously sustained fractures to both ankles. He also acknowledged problems with his feet (including a requirement for fusion 8 to 10 years ago) and the circumstance that in addition to the recent knee replacement, he was awaiting the need to have the other knee replaced.

Expert evidence

235. Mr Hamlyn relied upon the expert opinion evidence of an occupational therapist, Ms Catherine Brabrook. Dr Stanton relied upon the expert opinion evidence of Ms Susan Dinley. Both experts conferred on 29 September 2020 and they produced a joint report (Exhibit 1, Tab 7).

236. Ms Brabrook reported that Mr Hamlyn said he was limited by ‘stress incontinence’ (i.e. activities associated with heavy lifting, walking or push or pull actions), reduced energy or fitness, poor motivation and mood, and anxiety. In respect to past assistance provided, to him, in Stage 1, from 6 June 2017 to 4 July 2017, he required assistance in the order of 24 hours a week. In Stage 2, from 5 July 2017 to 30 June 2019, and in the stage after that (1 July 2019 to 29 February 2020), he required assistance of 12.5 hours per week.

235. In what she referred to as Stage 1, from 16 June 2017 to 3 July 2017, Ms Dinley considered that he reasonably required about 9.5 hours’ worth of support services each week, or 38 hours, for such things as personal care, domestic assistance, lawns/garden and maintenance and community access. Ms Dinley considered that from 4 July 2020, for a period of 158 weeks, Mr Hamlyn was likely to have required 7.5 hours per week. In total, over a period of 162 weeks, the weekly average dropped from 9.5 hours for the first 4 weeks to 1.4 hours per week for the remainder.

236. In their joint report, Ms Brabrook and Ms Dinley agreed that the domestic care and assistance that Mr Hamlyn has reasonably been provided, which has arisen from his urinary incontinence and faecal incontinence, has been: 7 hours per week, for the first 4 weeks; one hour’s maintenance, each week and 2 hours per week of transport. This yielded a total of 10 hours weekly for 4 weeks (stage 1).

237. They agreed on 30 minutes weekly for the whole of stage 2. But whereas Ms Dinley recommended 6 months for domestic support after Mr Hamlyn’s hospitalisation, Ms Brabrook recommended care and assistance for the whole period. The difference was explicable due to Ms Dinley’s view that Mr Hamlyn had pre-existing urinary incontinence from 2015. After 6 months to deal with his post-hospitalisation, he should have been able to resume his normal domestic tasks.

238. Their views did not change if it was found that the faecal incontinence was not caused by the surgery. Both agreed that this would result from bending and twisting, lifting and carrying, pushing and pulling similar to the impact of urinary incontinence.

239. Neither expert was called to give evidence.

240. Counsel for the plaintiff had submitted in his Schedule of Damages that allowance should be made in the sum of $50,000 on the basis of $300 per week for 3.25 years. This allowance was expanded in his closing written outline of submissions when a claim was made for $100,000.

241. Counsel for the defendant submitted that Mr Hamlyn was entitled to nothing for past domestic assistance.

242. In my view, even accepting Ms Dinley’s evidence, Mr Hamlyn passed the threshold requirements of s 15(3) of the Civil Liability Act and that the assistance rendered by his daughter would not have been rendered but for his disabilities. I accept the claim in the sum originally claimed in Mr Hamlyn’s Schedule of Damages.

Future care

245. In terms of his firewood activities, Mr Hamlyn estimated that he needs 4 or 5 loads to see him through the cooler months. He estimated that commercially, they cost $150 a load. Other than this, he had very little else to say beyond what he said in support of the claim for past assistance.

246. In the joint report, Ms Brabrook and Ms Dinley agreed that Mr Hamlyn would require assistance with firewood cutting into the future since that action was likely to place undue pressure on his urogenital area. They also agreed on maintenance of two hours per week.

247. They disagreed on the requirement for future domestic support. Ms Brabrook considered that this was required, but Ms Dinley considered that Mr Hamlyn would be able to complete his own domestic tasks using a combination of compensatory techniques and long handled and lightweight equipment.

248. Again their views were unaffected by whether or not Mr Hamlyn’s faecal incontinence was found to have not been caused by the surgery. That disability would result from bending and twisting, lifting and carrying, pushing and pulling similar to the impact of urinary incontinence.

249. They also agreed that Mr Hamlyn would benefit from six hours of occupational interventions, at the rate of $195 per hour. They also agreed with Mr Hamlyn being given long handled items for his self-care which he could use for his co-morbidities. Thereafter, for the long handled bathing and dressing aids, repair, maintenance and renewal would be six years and the long handled reacher 10 years. They also recommended a Myco swivel chair and an over toilet aid; with repairs, maintenance and renewals at 10 years.

250. Mr Dinley recommended a lightweight vacuum cleaner, duster buster and steam mop. Ms Brabrook agreed with this but also recommended 1.5 hours per week of ongoing domestic support. That would take into account his co-morbidities.

251. They also agreed about the requirement for continence nappies and the butt plugs.

252. Counsel for Mr Hamlyn submitted in his Schedule of Damages handed up to the Court that future paid care should be allowed for the sum of $175,000 based upon a rate of $250 per week. In his closing outline of submissions, he pulled back on this, and submitted that on the basis of his requirements for future care (5 hours a week) plus the cost of firewood, his allowance for this head of damages should be $117,000.

253. Counsel for Dr Stanton reiterated that, there being no prognosis and in the absence of any demonstrable proof of an allowance for past support, Mr Hamlyn did not establish any need for future assistance. If, however, he did receive such award, then under the principles identified recently in the Court of Appeal’s decision in Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 at [128]-[127], it should be very substantially discounted on the contingency that the care would not be availed of, even if required.

254. Mr Hamlyn has, to date, received assistance from one of his daughters. But she is growing older and very likely will soon wish to set out on her own path to independence without being confined to the role of carer or hampered by her need to look after her father. I accept that at some stage in the future, probably not all that far off, the services that Mr Hamlyn’s daughter has gratuitously been rendering will need to be supplied commercially. I also accept that it has not been shown that commercial assistance would be inaccessible to the plaintiff where he lives, assuming, as I do, that he proposes to remain there.

255. I would have been inclined to allow a sum of $100,000 by way of a buffer for this head of damages.

Quantum

256. Had I found in the plaintiff’s favour on liability, I would provisionally have awarded damages as follows:

Non-economic loss:                     $158,010

Past out of pocket expenses:      $13,650

Future out of pocket expenses:   $48,750

Past care and assistance:           $50,000

Future care and assistance:        $100,000

Total:  $370,410

257. Finally, damages could only be awarded on the predicate that causation was established. If (contrary to what I have found) Mr Hamlyn had received, and acted upon, advice to have radiotherapy, he would have still been exposed to the risks which have come home in relation to this surgical treatment. Given the evidence that there was up to a 5% risk that Mr Hamlyn would have sustained permanent urinary incontinence even with radiotherapy, and 5% for rectal side effects, I would have been inclined to further discount the damages award by a further 10% to reflect the chance of that outcome eventuating[23] .

     23. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

ORDERS

258. I order that there be Verdict and Judgment for the Defendant.

259. The Plaintiff is to pay the Defendant’s costs as agreed or assessed.

260. Should application be made to vary the costs order, it should be brought within 14 days.

261. The Exhibits are to be returned within 28 days.

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Endnotes

Decision last updated: 23 October 2020