Jayne Carlene and Darren John Kite v Peter Malycha; Jayne Carlene and Darren John Kite v Peter Malycha and Peter Malycha Pty Ltd Nos. Scgrg-97-1621, Scgrg-98-141 Judgment No. 6702 Number of Pages 45 Tort

[1998] SASC 6702

KITE and ANOR  v  MALYCHA

KITE  v MALYCHA and ANOR

Perry J

Preliminary.......................................................................................... 2

Witnesses............................................................................................ 3

Background circumstances................................................................ 5

The events of 2 December 1994....................................................... 9

Events after 2 December 1994........................................................ 14

Medical diagnosis and prognosis.................................................... 16

Findings and conclusions as to negligence..................................... 20

Contributory negligence.................................................................. 22

Damages

(a)     Preliminary       24

(b)     General damages for pain and suffering

and loss of amenities of life................................................. 25

(c)     General damages for loss of expectation of life    26

(d)     Loss of capacity as a homemaker    26

(e)     Loss of earning capacity     30

(f)     Voluntary assistance  38

(g)     Special damages          42

(h)     Mr Kite’s claims          42

(i) Interest.................................................................................. 45

The second action        46

Conclusions

Action No 1621 of 1997

A. Mrs Kite’s claim............................................... 53

B. Mr Kite’s claim................................................. 53

Action No 141  of 1998...................................................... 54

Preliminary

This judgment follows the joint trial of two actions.

In the principal action Jayne Carlene Kite and her husband Darren John Kite sue Peter Malycha, a general surgeon specialising in breast surgery, for damages arising out of Mr Malycha’s examination of Mrs Kite in December 1994.[1]

[1]    Action No 1621 of 1997.

In the second action, Mrs Kite sues Mr Malycha and a company through which he conducts his practice, Peter Malycha Pty Ltd, for damages for alleged breaches of fiduciary and other duties said to be owed to Mrs Kite having regard to Mr Malycha’s treatment of her following the examination to which I have referred.[2]

[2]    Action No 141 of 1998.

The gist of the principal action is that Mr Malycha, having taken a needle biopsy of a lump in Mrs Kite’s left breast, failed to take proper steps in response to a pathological report indicating that the specimen was highly suspicious of an underlying carcinoma.  It is alleged that in the result, Mrs Kite was not offered appropriate treatment at that stage.

The gist of the second action is that the defendants to that action are alleged to have been in breach of contractual and fiduciary duties, and that Mr Malycha put himself in a position of conflict of interest, in failing to advise Mrs Kite that he had given notice to his professional indemnity insurer of a possible claim against him, and in failing to give her access to notes and other information concerning her condition.

Mrs Kite underwent breast surgery in September 1995.  There is no doubt that by then Mrs Kite was suffering from ductile carcinoma of the breast which had become metastatic, that is, it had invaded other parts of the body, namely, a number of surrounding lymph nodes. Given the seriousness of her condition, and subsequent developments in it, she has now lived close to, if not beyond, her life expectancy.

The central issue in the case is whether or not the failure properly to diagnose the condition and to offer appropriate treatment in December 1994 robbed her of the chance of successfully curing the cancer, or reduced the life expectancy which she might otherwise have expected to enjoy.

Put shortly, Mr Malycha’s case is that while denying negligence, in any event, it would not have made any significant difference if her condition had been diagnosed and treated then.

During the remainder of these reasons, until I come to deal expressly with the second action, references to the proceedings are to be taken to be to the first proceedings, that is, what I have described as the principal action.

Witnesses

Mrs Kite did not give evidence at the trial, as she was not well enough to do so.  However, evidence which had been taken from her on commission by Judge Bowen Pain on 15 December 1997 was tendered by consent, as was a detailed and lengthy affidavit sworn by her on 11 December 1997.  It is largely from those two items of evidence that her account of the matter is to be obtained.

Other family members, namely, her husband Darren Kite, Mrs Kite’s mother Mrs Kearvell, her father Mr Kearvell and her sister Sally-Anne Totani gave evidence on her behalf, as did a close friend, Mrs Carolyn Inkpen.

The plaintiffs called a number of expert witnesses.  They included Professor Jonas Goldstone, a medical oncologist and haematologist, who is clinical professor of medicine at the Columbia College of Physicians and Surgeons; Professor Roger Blamey, professor of surgical science at the University of Nottingham, and, like Professor Goldstone, a world-wide authority on breast cancer; Dr John Miliauskas, a pathologist and histopathologist in the employ of Clinpath Laboratories (“Clinpath”); Professor Karol Sikora, who is professor of clinical oncology at the Royal Post-Graduate Medical School, Hammersmith Hospital, London and head of the World Health Organisation’s cancer program; and Dr Fergus Whitehead, a consultant pathologist with the Institute of Medical and Veterinary Science, Adelaide.

As well, the plaintiffs called Dr David Ellis and Ms Elizabeth Maine, respectively medical director and laboratory manager of Clinpath, and Mr Peter Holmes, a chartered accountant.

Mr Malycha gave evidence.  He called as part of his case two members of his staff employed at his rooms, namely, Mrs Cahill and Mrs Tininczky; Mr Greg Otto, a surgeon specialising in breast surgery; Mr Vladimir Humeniuk, an oncologist and general surgeon; two pathologists, Dr John King and Dr Michael Bilous, the latter being the clinical senior lecturer and director of the Department of Tissue Pathology at the Institute of Clinical Pathology and Medical Research, Westmead Hospital, New South Wales; and Mr Melville Carter, a senior surgeon, practising in Adelaide, who specialises in the treatment of breast cancer.

All of the expert witnesses were witnesses whose credit could not be impugned.  They gave impartial evidence to the best of their ability.  The differences between them are explained by differences of opinion as to the medical or scientific questions involved, differences in training and experience, and differences in their fields of expertise.

Some of the expert witnesses used slides and overhead projections to illustrate the aetiology of cancer and the techniques brought to bear in its detection and treatment.  As well, I was referred to a number of learned medical texts.

The expert witnesses were subjected to long and searching cross-examination.

I have carefully considered this imposing body of evidence, which canvassed some of the most up-to-date and expert views in a difficult area of medical science.

Some of the opinions conflicted. I have resolved differences of opinion only where necessary in order to assist in the process of determining on the balance of probabilities the nature and extent of Mrs Kite’s disease and its prognosis if she had been given timely and competent medical advice and treatment.

My task is essentially forensic.  It is limited to a determination of her claim according to ordinary legal principles.  It would be both inappropriate and unnecessary to attempt any sort of general excursus as to the merits or demerits of the competing schools of medical thought on the diagnosis and treatment of breast cancer.  Neither would it be appropriate to enter into a detailed analysis of the differences between one school of thought and another.  All that is of consequence for present purposes is to indicate which medical evidence I prefer, and where it leads in determining Mrs Kite’s claim.

Where I make findings with respect to the medical and other issues, it may be assumed that I have rejected evidence inconsistent with those findings.

I should comment on the evidence given by Mr Malycha.  He has held positions as a senior surgeon at major hospitals in South Australia, the United Kingdom and New Zealand.  He has held a number of teaching posts, and has held office on professional committees and prestigious institutions associated with breast cancer and breast surgery.

The circumstances of this case do not reflect on his ability as a surgeon.  Rather, the shortcomings which the case eventually exposed were in failing to record in his notes, and follow up appropriately the procedure known as a fine needle aspiration which he performed on Mrs Kite on the occasion of his attendance upon her on 2 December 1994.

I accept that he was a truthful witness.  He was open and candid as to how he went about the task of examining Mrs Kite on that day, and as to the events which unfolded thereafter, even when some of the matters he admitted to were against his interest. But as will be seen, an unusual combination of circumstances arose which had most unfortunate consequences both for him and particularly for Mrs Kite.

Background circumstances

Mrs Kite is aged 35 years, having been born on 10 January 1963.  Mr Kite is aged 36 years.  They have three children, a son aged 7 years, and two daughters aged 5 and 2 (nearly 3) respectively.

Mrs Kite has always been concerned about breast lumps.  From an early age she has undergone mammograms.  She had her first mammogram at the age of 18 and other mammograms at intervals of every few years thereafter.  There is no family history of breast cancer.

She believed from what she had read in magazines that the early detection of cancer was important.  She adopted the practice of examining her breasts for lumps under the shower at least once a week.  She had consulted her general practitioner, Dr Krishnan, and other doctors about lumps in and  about her breast, but they had always subsided, sometimes following application of creams or antibiotics.

I accept the evidence of Dr Krishnan as to the conditions which he treated.  In particular, I accept his evidence that in either 1989 or 1990 (he no longer had his early records), she presented with what he diagnosed as infected follicle glands in the right armpit.  He referred her to a breast surgeon, Mr Adrian Bryan, who reported that there was no malignancy.  Dr Krishnan attributed the infection to Mrs Kite’s habit of shaving herself in the area of the axilla.

I should make it plain that the axilla is, in lay language, the armpit.  The axillary tail of the breast is the part of the breast which extends into the axilla.

At all events, the condition appeared to clear up with the antibiotics which Dr Krishnan prescribed.

In January 1994 she presented again, this time with what he diagnosed as folliculitis in the left axilla.  He thought that the condition was a product of the same process, that is, an infection of the hair follicle following shaving of the hair in the affected area.  He said that it appeared “red and raw”, typical of a “blind boil or abscess”.  He prescribed antibiotics.

The next time she attended, which was about seven days later, she said that it had healed.  Although he saw her again in about April 1994 for an unrelated (and for present purposes irrelevant) condition, there was no further complaint to him then of a similar kind.

On 17 May 1994 Mrs Kite consulted another general practitioner, Dr Tony Lynch.  He was not called to give evidence before me, but he referred her to a surgeon, Mr Otto, who practised in part from Modbury Hospital.  What Dr Lynch observed, and the reason for the reference, appear from the letter which he wrote to Mr Otto (I have interpolated some explanations):

“2/12 (2 months) L (left) axillary lymphadenopathy, tender, only temporary improvement with Flucloxacillin (an antibiotic) - 2 courses.  Mammogram (at) 25 years for breast lumps NAD (no abnormality detected).  No FH (family history) of breast cancer.  OE (on examination) shotty tender L (left) axillary lymph nodes. Serology for a typical microbacteria CBE LFT breast NAD (no abnormality detected) no other lymphaneropathy.”

Mr Otto saw the plaintiff at Modbury Hospital out-patients on 19 May 1994.  By letter of 27 May 1994 he reported to Dr Lynch as follows:

“Many thanks for referring Ms Kite who has noticed some lumps in her left axillary region over the last two months.  The lumps are tender at times and have failed to respond to antibiotics.  She is otherwise in good health and there is no family history of breast cancer or other significant risk factors for this disease.  She has had no major surgery in the past and there are no systemic symptoms such as excessive weight loss or night sweats.

On examination there were two intracutaneous lumps in the left axilla which are somewhat tender.  There is no breast abnormality on the other side and there are no palpable axillary nodes.  I think her problem is that of subhidradenitis (sic) suppurativa which is a benign condition of sweat glands.  The only treatment is to remove the nodules if they become troublesome.  I have discussed this with her.  At the moment she is happy just to simply wait and see.  I have arranged to see her in 3 months time if the lumps are troubling her.  At that stage then I will organise to remove them under local anaesthetic.”

In fact, a follow-up appointment was made by the hospital after Mr Otto’s examination and before Mrs Kite left the hospital that day.  This was for 18 August 1994.  I am satisfied that she was aware of the appointment having been made.  She did not attend.  No explanation has been given for her failure to do so.

Mr Otto said in evidence that when she failed to attend he would have reviewed the notes.  But as he had diagnosed, at least provisionally, a benign condition he did not follow the matter up thereafter.

However, Mrs Kite consulted Dr Krishnan again on 7 September 1994.  He observed a condition in the left axilla which he assumed to be a similar infection to that which he had treated before.  As was his normal practice in such situations, he conducted an examination of the breast as well as of the axilla.  In the breast examination he was looking to see if there was a primary tumour of which the condition in the left axilla might have been a secondary (metastatic) growth.  He came to the conclusion that it was once again a follicular infection for which he prescribed an antibiotic.

Mrs Kite described the appearance of the condition as she presented in September 1994 as a “new” lump under her left armpit.  It is important to note that she described it as “new”, as the earlier lumps associated with the conditions under the right and left armpits (including what Mr Otto had seen) were said by her to have gone away after the treatment prescribed by Dr Krishnan.

This time it did not go away, despite the treatment which he suggested.

I accept her evidence that the earlier lumps resolved, and that a new lump, which persisted, developed at about that time.  As will be seen, that the earlier lumps resolved is consistent with certain of the medical evidence.

Mrs Kite was by then pregnant with her third child.  The gynaecologist who had the management of her pregnancy was Dr John Sangster.  When the lump did not go away, she consulted him on 28 November 1994.  She was by then two or three months into the pregnancy.

Her evidence is that by then the lump in the left armpit had been there for about eight weeks or so.  Although that is a shorter period than would be the case if the lump was that which she demonstrated to Dr Krishnan on 7 September 1994, I am satisfied that it was the same lump as he saw, but different from the condition which earlier had been observed by Dr Lynch and Mr Otto.  She thought it had started very small but it continued to grow. Her description of it at that stage in the affidavit which was received as part of her evidence, is as follows:

“The lump at that stage was about the size of my little finger nail.  To touch the lump felt hard.  When I put my fingers on it, I was able to move it around underneath the skin.  I could feel that it was not like a pimple on the skin but was something deeper which tended to move around a bit.”

She went on to say that she had “always” had “lumpy” breasts, particularly during pregnancy.  But she said:

“The lump that was developing underneath my left armpit was different to the other lumps that I had previously looked at.  It was different in the sense that it was harder and felt more like a foreign body than the others.  The others were softer and more close to the surface of the skin.  This felt much deeper.”

During the course of his examination on 28 November 1994, Dr Sangster informed her that he was concerned at the look of the birth mark on her back, mid-way between her shoulders, which he thought might have been malignant.

After examining the lump in the armpit, Dr Sangster recommended that she see a specialist with expertise in the area of breast cancer diagnosis.  He recommended Mr Malycha, and wrote out a letter of referral to him in her presence.

The letter of referral reads as follows:

“Dear Peter
Thank you for seeing Jayne Kite in early pregnancy with L axillary lumps for past 9 weeks causing discomfort and multiple naevi on upper back.
Kind regards
John”

Mrs Kite saw Mr Malycha at his rooms on South Terrace on 2 December 1994.

The events of 2 December 1994

During the course of the history which he obtained from her, Mr Malycha elicited that there had been a small lump in her left armpit about a year beforehand, but that it had gone away after it was treated with antibiotics.  She explained to him that the lump now present in her left armpit was bigger and tender.

He then examined both breasts, looking for evidence of cancer.  He found a lesion in the left axilla.  The site of the lesion did not immediately suggest that it was in the axillary tail of the breast as opposed to a position beyond the tail of the breast.  It is now clear that the axillary tail of Mrs Kite’s breast extended a little beyond the area to which it would commonly extend in other patients.

At all events, Mr Malycha conducted a fine needle aspiration of the lesion.

Aspiration of the lesion with a fine needle was an appropriate procedure.  There is no suggestion that it was not performed competently.  It involved inserting the needle into the skin and taking several passes, so as to collect in the shaft of the needle a specimen from the area into which the needle was inserted.

In her affidavit Mrs Kite says that Mr Malycha spoke of the possibility of a needle biopsy or needle aspiration, and explained what that involved.  She says that she then asked him to perform the needle biopsy.  Indeed, according to her, she pressed him to do so as she wanted to be satisfied that there was “nothing wrong”.

Just why Mr Malycha performed the fine needle aspiration is not entirely clear.  In his evidence before me, so far as he could recollect, there was nothing about her condition which prompted him to perform the fine needle aspiration.  Indeed, he could not remember having performed it that day on Mrs Kite.

I find, however, that he performed the biopsy, at least in part, as a diagnostic aid.  I make that finding in view of the terms of his letter to Dr Sangster of the same day, to which I refer in due course.

She was anxious about her condition.  It seems likely that Mr Malycha was prompted to perform the needle biopsy in part as a result of Mrs Kite urging him to do so, and in part, as I have said, as an aid to diagnosis.

After the examination and the needle biopsy, Mr Malycha explained his view as to her condition.

Mrs Kite says that Mr Malycha told her that the condition was no more than infected sweat glands, and that “they” did not “turn cancerous”.  In technical terms, he had diagnosed hydradenitis.  His reference in his note to Clinpath written after the fine needle aspiration had been made, was “Mass in left axilla ? sebaceous material”.  On the medical evidence, this is consistent with him having reached a diagnosis of hydradenitis.

Mr Malycha did not make a note of having performed the fine needle aspiration.  He said that it was his usual practice to make such a note when he performed that procedure.  He was unable to explain why he did not do so on this occasion.

I am satisfied that at the conclusion of the examination and the interview, arrangements were made for Mrs Kite to return in a few weeks time.  Despite her evidence to the contrary, I am satisfied that an appointment was made for that purpose for Tuesday 3 January 1995 at 12 noon.  I find that she was given a card confirming the details of the appointment before she left Mr Malycha’s rooms.

I reject Mrs Kite’s evidence that Mr Malycha said that he would have the specimen taken by the needle biopsy tested and if anything “showed up” he would be in touch with her.

On the contrary, I find that, in accordance with Mr Malycha’s usual practice, she was asked to ring his rooms later that day to ascertain the result of the biopsy.

From the specimen which had been aspirated, Mr Malycha prepared two slides.  He put them with a printed form provided by Clinpath which he put out for collection by their courier.

I am satisfied that the specimen was collected by them on the same day.

The outcome of Dr Miliauskas’s pathological examination is expressed in the following passage in the report dated 2 December 1994 which he sent to Mr Malycha:

“HISTORY

......... Mass in left axilla. ? Sebaceous material. Mass 4x2cm.

MACROSCOPY
                  Received two prepared slides.

MICROSCOPY

The aspirates are highly cellular and consist of duct epithelial cells, dissociated epithelial cells, background bare nuclei, scant blood cells with many degenerate and distorted epithelial cells.  A few scattered small stromal fragments are present.  There are some scattered benign duct epithelial cells but many of the epithelial cells show nuclear atypia with nuclear enlargement and focally some nucoleolar prominence.  I do not feel that the features are those of a fibroadenoma with associated cellular atypia.  The features are those of an atypical epithelial proliferation highly suspicious of an underlying carcinoma.”

The evidence adduced by the plaintiff was that a report in those terms was faxed to Mr Malycha’s rooms at 5.53 pm.  For this purpose, Clinpath utilised an automated facsimile transmitter known as an “autofax”, which is activated at the same time as a hard copy of the report is generated.  The autofax process involves a “handshake”, which is an electronic communication from the receiving machine to confirm the receipt of it.  If the so-called “handshake” does not occur, the autofax produces a record indicating that the “fax failed”.

A print-out of the electronic record does not record any failure in the transmission.  It records what it would ordinarily note if the receipt of the fax is confirmed by the machine which receives it.

As well, the hard copy of the report of Dr Miliauskas was said to have been couriered by hand to Mr Malycha’s rooms.  Clinpath had a number of couriers on their staff.  They had various “runs” or circuits, one of which included Mr Malycha’s rooms.  The run, which occurred after the autofax was transmitted and after the hard copy report would have been signed, would have reached Mr Malycha’s rooms at approximately 8.40 pm.

Mr Malycha’s evidence is that he never saw the report in either form, at least until 31 October 1997 when he saw it in circumstances which I refer to below.  He was unable to explain why he did not see it at the time.

I have carefully considered his evidence as to that, and all of the other evidence bearing on this aspect of the matter.  The other evidence includes the fact that although a copy of the report was, apparently, also sent to Dr Sangster (although it seems likely that it went to the wrong Dr Sangster), and to Dr Krishnan, there is no evidence that either of them saw it.  Dr Krishnan denies receipt of it.  Neither was the Dr Sangster to whom the report is said to have been delivered called.

I must say that this aspect of the case has given me considerable concern.

At the end of the day, I have reached the view that more likely than not the autofax transmission was received by the fax machine in Mr Malycha’s rooms.  I am unable to say whether it was printed out, or if it was printed out, what became of it.  The practices and procedure in his rooms as to the handling of the facsimile copy produced the machine in by his rooms left a greater chance for it to be misplaced than would be the case with the hard copy if the hard copy was delivered.

The fax machine was mounted on a bench top.  There was no collection tray.

Furthermore, the fax machine was shared by several of the medical practitioners who carried on their practice from the same building, including Mr Malycha.  It follows that it is likely that facsimile copies produced by the fax machine were intermingled and distributed by different members of the staff of the various medical practitioners who had access to the machine, which was housed in a shared tea room.

I take a different view as to the probabilities with respect to the hard copy which, as I have said, would ordinarily be delivered later by a courier.  As to that, I am satisfied on the balance of probabilities that the hard copy was never delivered.

In reaching that view, I have had particular regard to the absence of evidence that it was received by either of the other two medical practitioners to whom it is said to have been sent.  The fact that there is evidence that it was not on Mr Malycha’s file when the file was perused by his secretary, Ms Cahill, in October 1997 is also significant.

If the hard copy had been received by his rooms, or if the faxed copy had been received and processed in accordance with the prevailing practice in his rooms, the system was such that it is most unlikely that it would not have been brought to his attention.  If it had come to his attention, it is inconceivable that he would have failed to act on it.

In summary, I find on the balance of probabilities that the report was faxed to Mr Malycha’s room, but that for some reason or another it was misfiled or mishandled, if in fact the facsimile machine in Mr Malycha’s room printed a copy of it, with the result that its contents were never read by Mr Malycha, and it was never placed in his file for Mrs Kite.  I find on balance that the hard copy of the report was not delivered to his rooms.

Mr Malycha wrote to Dr Sangster on the same day as his examination of Mrs Kite, that is, on 2 December 1994.  The letter is in the following terms:

“Dear John
Re:  Mrs Jayne Kite
..............
Inflamed sebaceous thickening left axilla.
Pigmented birthmark middle upper back.

Thank you for asking me to see Mrs Kite who is twelve weeks into her third pregnancy.  She has noticed a tenderness in the left axilla over the last few months.  This had been present about twelve months ago but settled with a course of antibiotics.  She is understandably anxious about this.

There is nothing of significance in her past or family history to indicate she would have an increased risk of developing breast cancer.

Examination of her breasts was unremarkable.  She is in the early stages of pregnancy so her breasts were quite large and normal other than subdermal thickening in the lateral aspect of left axilla which extended to the upper arm.  This was in the area of the apocrine sweat glands and I believe represents an area of hidradenitis (sic) without suppuration.  From the history it would appear this had occurred earlier.  I performed a fine needle aspiration biopsy as this may show debris or other cells which would further define the diagnosis

I have given her reassurance.  I think she may require a further review and reassurance so I have therefore indicated she can return to see me in the New Year if she wishes.

The pigmented area in the upper middle back results from an old birthmark.  It is clinically benign but I think a plain coloured print would be worthwhile.  She will obtain this for you to keep in your records.”  (emphasis added)

As to the further appointment for Mrs Kite to see him, it will be seen that in the letter he reported that she was to see him in the New Year “if she wishes”.  In fact, as I have indicated, I am satisfied that a follow-up appointment was made with her before she left his rooms on 2 December 1994.

I am satisfied also that Mrs Kite did not, as had been suggested to her, ring Mr Malycha’s rooms later that day.

Events after 2 December 1994

Neither did she keep the appointment arranged for 3 January 1995.  She took no other steps to contact Mr Malycha.

When she failed to turn up for the appointment, I am satisfied that, in accordance with his usual practice, Mr Malycha would have reviewed his notes concerning her, although he has no express memory of having done so.  I am satisfied that he would have done so with a view to seeing whether there was anything he should follow up, despite the fact that she had not presented for the appointment.

But when he did look at his file, as well as his notes taken at the time of the December examination, he should also have seen the letter to Dr Sangster.  If he had read it closely, it would have confirmed that he had taken a fine needle aspiration.  I think that he must have given the letter only a cursory look, if he read it at all, as otherwise he would have seen the reference to the fine needle biopsy and would have been prompted to look for the pathology (“cytology”) report on it.

In the result, both he and Mrs Kite remained ignorant of the terms of the cytology report until late in 1997.

Mrs Kite’s third child was born on 15 June 1995 by caesarean section.  By the time of the birth, her impression was that the lump under her armpit had grown marginally larger.

She was not unduly perturbed by this, as Mr Malycha had indicated to her that it was in the nature of swollen sweat glands that the size could vary.

But at some time after the baby was born, not only did she discern that the lump had become larger, but it became uncomfortable and began to annoy her.  She decided to make a further appointment to see Mr Malycha.  To that end, in August 1995, she telephoned his rooms.  She was told that she could not see Mr Malycha for about a month.  The earliest was 22 September 1995.

Mrs Kite saw Mr Malycha on that day.  At that stage she estimated that the lump had grown from the size of her small fingernail to the size of the last joint on her small finger.

She explained to Mr Malycha that the lump was painful and that she could not easily put her arm down.

Mr Malycha acknowledged that it had grown a little since he last saw it.  He expressed the view that the lump was benign.  He still attributed it to a swollen sweat gland.  But she insisted that he remove it.

For this purpose, she was admitted to St Andrew’s Hospital on 25 September 1995.

At the operation, Mr Malycha excised what he described in his operation note as “the area of concern” in the axilla, which was a “hard gritty area beneath the skin”.  On deeper palpation of the axilla, he located a lymph node which was somewhat hardened.  He removed that as well.

After the operation, Mr Malycha informed Mrs Kite that he had removed the lump and also one of her lymph nodes.

On 25 September, the same day as the operation, Clinpath reported that the excised tissue was a cancerous tumour, the maximum diameter being 2.5 centimetres, and that the lymph gland was also malignant, demonstrating metastatic breast carcinoma.

Mr Malycha found it hard to believe that the tumour was in breast tissue.  There is much expert evidence to the effect that it was a most unusual position in which to find breast cancer.  He rang the pathologist, Dr Miliauskas, to confirm that he was sure that it was breast cancer.  Dr Miliauskas confirmed that to be his view.

Mr Malycha arranged to see Mrs Kite two days later, that is, on 27 September 1995.       When he saw her, he told her that the lump was cancerous.  He told her that the lymph node which had been removed had also been invaded by the cancer.  He suggested further tests at St Andrew’s Hospital.

For this purpose, she attended at the hospital the next day.  It is unnecessary to go into the detail of the further tests which were performed.

There were several developments thereafter.  Mrs Kite ascertained the name of another specialist, Mr Melville Carter.  Mr Malycha arranged a reference to Mr Carter, whom Mrs Kite consulted on 11 October 1995.  He recommended immediate surgery.

Mr Carter, assisted by Mr Malycha, performed further tests and a partial mastectomy on 19 October 1995 at Ashford Community Hospital.  On this occasion, Mr Carter performed an operation known as an axillary clearance of lymph nodes from the left axilla.  Ten more lymph nodes were excised.

On histological examination, four of the ten lymph nodes were found to be malignant.  This meant that altogether, including the lymph node which had earlier been removed by Mr Malycha, five out of eleven were malignant.  This was a bad sign from the point of view of the prognosis.

Thereafter and until the date of trial, the plaintiff has been subjected to intense treatment designed to arrest the spread of the cancer.  On 8 November 1995, she began the first of six cycles of chemotherapy treatment.  On 17 July 1996, her ovaries were removed in the hope that this would induce hormonal changes which would be conducive to arresting the spread of the cancer.  She underwent further surgery involving a breast reduction on 19 December 1996 at Calvary Hospital.  By October 1997, tests indicated that the cancer had spread to her liver and bones.

Medical diagnosis and prognosis

I deal with diagnosis and prognosis under the one heading as, in the case of breast cancer, the two are very much inter-related.

There is little doubt as to both of those aspects of the matter, speaking as of September and October 1995.  By then, surgical intervention followed by the histopathological testing confirmed the presence of extensive surrounding lymph node involvement.  This demonstrated that there was ductile carcinoma of the breast which had become metastatic.

The issue which is of pivotal importance in determining the outcome of the case is the state of the development of the cancer as at December 1994, when she was examined by Mr Malycha.

The expert evidence on both sides is to the effect that the earlier breast cancer is detected, the greater the chance of effective treatment.  Furthermore, as the cancer develops, certain features emerge which may assist in determining how advanced the cancer is, what treatment regime is best indicated, and what is likely to be the prognosis.

Three factors in particular throw light on those matters - the size of the tumour, whether the surrounding lymph nodes are involved, and the biological aggressiveness of the tumour, sometimes referred to as its Grade.

Recognition of the importance of those three factors has resulted in much scientific research based, in the main, upon extensive case studies in an endeavour to develop classifications to assist in accurate diagnosis and as an aid to treatment.

There was much expert evidence as to the relative merits of two internationally recognised classification systems.

One system, developed by the International Union Against Cancer (UICC), is known as the TNM clinical classification.  The three letters just referred to refer to the three categories: T denoting the size of the tumour; N, extension to lymph nodes; and M, the aggressiveness of the cancer calculated by reference to the presence or absence of distant metastasis, which in turn is a reflection of the histological grade of the tumour.

The collective assessment of each of the indicia applicable to the particular patient under the three categories results in the assignment of a “stage”, the stages varying between zero and IV.  Stage 0 on the TNM classification, while assigned if there is a tumour present, designates that there are no regional lymph nodes involved and no distant metastasis indicating the spread of the disease to other organs such as the liver.  The most serious stage under the TNM classification, stage IV, is applicable irrespective of tumour and lymph node involvement, as it automatically applies if there is distant metastasis.

Distant metastasis is a serious negative diagnostic indicator.

The other diagnostic classification to which reference was made is known as the Nottingham Prognostic Index, so called as it was developed in Nottingham, UK, by a group of scientists which included the witness Professor Blamey.

That index operates on the basis of the assignment of a numerical score, the individual components of which relate to the tumour size, the histological grade and lymph node involvement, if any.  The higher the score, the worse the likely outcome.  The size of the tumour is not regarded as such an important factor, and it is weighted down in the allowance made for it in the score.  Lymph node involvement is, however, given a substantial weighting.

One of the key differences between the TNM classification and the Nottingham Prognostic Index is that the latter classification does not place so much weight on extension of the cancer to the chest wall and its involvement in the skin, as opposed to structures below the level of the skin.

Surprisingly, there was much contention between the expert witnesses as to whether or not for this purpose the skin means simply the epidermis or upper layer, or the dermis or lower layer of tissue.

All of the experts agreed, however, that whichever classification was used, or even if neither of the classifications to which I have referred was invoked, any involvement of the cancer in surrounding lymph nodes signalled a poor prognosis.

The examination conducted by Mr Malycha in December 1994 was neutral in that regard.  It neither confirmed nor excluded lymph node involvement.  The pathological examination of the specimen obtained by the fine needle aspiration was confirmatory of the presence of cancer in what it is now clear was the primary tumour.  But that test, standing alone, throws no light on the question of lymph node involvement.

Both the presence of cancer in one of the lymph nodes and its size (8 millimetres) was able to be confirmed during the course of the operation performed in September 1995.  Working back from that, Professor Goldstone estimated that lymph node involvement dated for about six months before September, that is, from about March 1995.  Likewise, Professor Sikora was prepared to opine that on the balance of probabilities, and given the conditions found in September and October 1995, there would not have been any lymph node involvement in December 1994.

Other strongly expressed medical opinion was to the effect that either it was more likely than not that there was in fact some involvement of the lymph nodes in December 1994, or that it was simply impossible to say one way or the other what the situation would have been in that respect.

In this and in the other contentious areas with respect to the diagnosis of Mrs Kite’s condition, I prefer the evidence of Professor Sikora where it conflicts with other expert testimony.  In any event, in the critical areas, his opinion is supported by others.

I find that on the balance of probabilities there was no lymph node involvement as of December 1994.  I find further, on balance, that there was no such skin involvement as might have satisfied the TNM  T4 classification, or such as would be otherwise indicative of a poor prognosis at that stage.

Estimations of the size of the tumour as of that time were less contentious, although there were differences of opinion between the experts.  As to that aspect of the matter, most of the experts were prepared to work back from the maximum diameter of 2.5 centimetres measured by the pathologist after the excision performed in September 1995.

I find that the size of the tumour in December 1994 was between one and two centimetres, probably about 1.5 centimetres.

While the tumour was aggressive, on the whole of the evidence, I would not find that it was in the most aggressive category.  There was a difference of opinion as to this between the pathologists, who are best able to indicate the likely grade.  The evidence which I prefer is that it would not have varied between December 1994 and September 1995.  Various estimates put it between a grade II and a grade III.  I find that it likely to have been something between the two, which was Professor Sikora’s opinion.

I further find on the balance of probabilities that the tumour was not the lump or lesion seen by Dr Krishnan and other doctors earlier in 1994, before Mrs Kite consulted Dr Krishnan with what she described as a “new” lump on 7 September 1994.  I am satisfied, on balance, that the other lumps or lesions did, as she states, cleared up before the “new” lump emerged.

A significant item of evidence which supports that conclusion is the tracing of the outline of the lump which he felt on 19 May 1994, by Mr Otto, on an anatomical illustration, in cross-section, of the layers of the skin extracted from Grant’s Method of Anatomy.

Mr Otto indicated in the drawing which he made, that the lump which he felt extended into the epidermis, or outer layer of the skin.

But the tumour excised in September 1995 extended into, but not beyond, the dermis or inner layer.

A feature of the natural progression of malignant tumours is that they grow in size.  It follows that if Mr Otto correctly depicted in his drawing the location of the lump which he felt, and in particular its intrusion into the epidermis, it could not have been the same lump as was excised in September 1994.

While it is true that Mr Otto said that the drawing was “simply a clinical impression”, he is an experienced surgeon who might be expected to indicate with some degree of precision the position of the lump which he felt, which is, after all, an expression of his clinical impression, particularly when asked to do so in the setting of the court hearing, when there was such a sharp focus on the evidence as to the size and location of the lesion.

The findings which I have made, particularly as to lymph node involvement, size of the tumour, skin involvement and grade, point to a favourable prognosis as at December 1994.

Putting together the various factors to which I have referred, and having regard to the expert opinion which I prefer, I find on the balance of probabilities that if the cancer had been diagnosed in December 1994, and if properly treated then, it would either have been cured, or Mrs Kite would have had a much extended life expectancy compared with the life expectancy which she now enjoys.

Findings and conclusions as to negligence

The law is clear as to the duty of care owed by medical practitioners:[3]

[3]    Rogers v Whitaker (1992) 175 CLR 479 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ at 483.

“The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment.  That duty is a ‘single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment’:[4] it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.[5]  It is, of course, necessary to give content to the duty in the given case.

[4]    Citing Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 per Lord Diplock at 893.

[5]    Citing Gover v South Australia (1985) 29 SASR 543 at 551.

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.[6]  .......”

[6]    Citing Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586, [1957] 2 All ER 118 at 121; Whitehouse v Jordan [1981] 1 WLR 246 at 258, [1981] 1 All ER 267 at 277 per Lord Edmund Davies and Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 638, [1985] 1 All ER 635 at 648 per Lord Scarman.

In this case, the standard of care and skill owed by Mr Malycha was that of an ordinarily skilled surgeon specialising in oncology, more particularly breast cancer, who also conducted a substantial practice as a clinician in the same area.

Against that background, and having regard to the substantial body of expert evidence given in this case, there is no reason to find fault with Mr Malycha’s examination of Mrs Kite on 2 December 1994, or as to the diagnosis which he came to at the conclusion of that examination.  Indeed, many of the eminent experts who gave evidence would have arrived at the same diagnosis (absent the pathological testing) as he came to, having regard to the condition as it was presented at that time.

I have explained the circumstances in which Mr Malycha and Mrs Kite remained ignorant of the terms of the cytology report given by Clinpath following the needle biopsy of 2 December 1994, until much later.  The circumstances which gave rise to his failure to become aware of the report are indicative of a failure to answer to the standard of care which was imposed upon him.

Having performed the fine needle aspiration, he owed a duty to record that he had done so in his notes.  He did not do so.  Furthermore, if perchance the cytology report was not brought to his attention, he should have made some inquiry to find out what had happened to it.

At worst, he should have become aware of it when Mrs Kite did not come in for the appointment on 3 January 1995.  His review of his notes at that stage should have alerted him to the fact that he had taken a fine needle aspiration and had not seen the result of it.

Not only did he have no note of the needle biopsy, but he missed the reference to it in the file copy of his letter to Dr Sangster.

Obviously the simplest of systems would have provided a more or less foolproof means of checking whether cytology reports had been forwarded to his rooms.  All that would have been needed was a simple running sheet, recording that such a report had been requested, with provision for the particular entry to be ticked off when the report was received.

He had no such system.

Mrs Kite’s failures to ring him on 4 December or to attend for the follow-up appointment does not excuse the breach of the duty of care imposed upon him in that respect.  Irrespective of any initiative taken by the patient, he owed a duty to find out what the outcome of the pathological examination of the fine needle aspiration was.  As Mr Wells QC put it during the course of his address, it is “unreasonable for a professional medical specialist to base his whole follow-up system, which can mean the difference between death or cure, on the patient taking the next step”.

Mr Malycha owed a duty to inform himself of the outcome of the pathologic test of the specimen, and to offer appropriate treatment in the light of the report.

The evidence of Mr Malycha, during the course of his cross-examination, was:

“Q.... Do you agree that following the forwarding of this request form (the request form to Clinpath) with the sample that you should have followed up that request in order to obtain the result?

A...... I agree that it’s my responsibility to do that.”

In my opinion, the plaintiffs have made out their case in negligence against Mr Malycha.

Contributory negligence

In his defence to the proceedings, Mr Malycha pleads:

“13... The first plaintiff (Mrs Kite) was guilty of contributory negligence in that she:

13.1. Failed to contact the defendant’s rooms by telephone to obtain the results of her fine needle aspiration biopsy;

13.2. Failed to consult with the defendant at an appointment made for 3 January 1995.”

As to the plea in paragraph 13.1, as I have already found, I am satisfied that the witness Ms Tininczky or Mr Malycha made it clear to Mrs Kite that she was to ring to ascertain the results of the fine needle aspiration biopsy.  Furthermore, when she left his rooms on 2 December 1994, I am satisfied that an arrangement was made that she would come in again for a further appointment fixed for 3 January 1995.

She did neither.

But if Mr Malycha had ascertained the results of the biopsy in the meantime, as in the ordinary course one would expect would have happened, and if they were adverse, there would then have been a duty on him to contact Mrs Kite, and if it was thought it desirable to do so, to suggest that she might see him sooner.  That did not happen, as he did not become aware of the cytology report until much later.

Furthermore, Mrs Kite was entitled to assume that if the cytology report was adverse, she would be told about it.  When no communication to that effect was made to her, she not unnaturally assumed that there was no adverse outcome.

Mr Melville Carter’s notes of his attendance upon her of 11 October 1995 confirms that to have been her state of mind.  In particular, he noted, from the history which she gave to him:

“Had FNAB (fine needle aspiration biopsy) which did not show evidence of malignancy.”

As to the plea in paragraph 13.2, Mrs Kite’s failure to come in for the appointment arranged for 3 January 1995, given her evident anxiety as to her condition, is surprising.

But I must say that there is much evidence in the case, which, contrary to the contention put by Mr Wells QC, satisfies me that she was not reliable in keeping appointments.

Be that as it may, it is another matter entirely to characterise her failures to ring or to keep the appointment as evidence from which it would be right to conclude that she was guilty of contributory negligence.

It is true that there are some cases where a medical patient has been held guilty of contributory negligence.  Mr Stratford referred in particular to Locher and Anor v Turner.[7] And Kalokerinos v Burnett.[8]  I do not pause to go into the circumstances of those cases, as they are simply illustrative of the undoubted fact that general legal principles relating to contributory negligence are applicable in cases such as this.

[7]    (1995) Aust Torts Reports [81-336] page 62,342.

[8]    (Unreported) NSW Court of Appeal, 24 December 1996 but c/f O’Shea v Sullivan and Anor (1994) Aust Torts Reports [81-273] page 61,288.

But each case depends upon its own complex of circumstances.  Furthermore, I do not think that the courts should be quick to find contributory negligence on the part of patients who have put themselves in the hands of competent medical practitioners for advice and treatment.

In general terms, Mrs Kite owed a duty to exercise reasonable care for her own safety and well being.  But her conduct must be judged in the light of the circumstances as a whole.  Mr Malycha concedes that he reassured her as to her condition when she saw him on 2 December 1994.  Very likely his reassurance would have led her to believe that a follow-up consultation was not so important as it might otherwise have been.  As I have said, irrespective of whether she rang up about it, she was entitled to assume that if the outcome of the testing of the biopsy gave cause for concern, she would be informed.  No doubt she would then have sought further advice.

In all the circumstances, I think that it would be going too far to visit her with a finding of contributory negligence based upon her failures to ring up on 2 December 1994 and to keep the appointment made for the following January.

The plea of contributory negligence is not made out.

Damages

(a)     Preliminary

I make some further findings of fact relevant to the assessment of damages, before dealing with specific heads of loss.

Although strictly Mrs Kite’s damages are for loss of a chance, given the seriousness of the condition if it had been diagnosed in December 1994, I do not think that there is any doubt that she would have sought and obtained appropriate treatment.

I have so far referred to the fact that if the cancer had been diagnosed in December 1994 and Mrs Kite had been given appropriate treatment, the cancer either would have been cured, or Mrs Kite would have had a much extended life expectancy compared with the life expectancy which she now enjoys.  So that although her claim should no doubt be classified as one for damages for loss of a chance of successful treatment, I have concluded that there was a likelihood of successful treatment, in the sense that I have explained.  Damages should be assessed therefore on the basis of a likelihood of successful treatment, rather than a mere chance.

Estimates of her present life expectancy vary.  On the whole of the evidence, I find that her life expectancy, having regard to her present condition, will extend to about December 1998, or, say, four years from the date upon which she was examined by Dr Malycha in December 1994.

As of December 1994, she was 32 years of age.  According to tables produced by the Australian Bureau of Statistics, a female of the age of 32 years in 1994 would have had a further life expectancy of 50.03 years.  But, in my opinion, her life expectancy was, for the reasons I have given, and having regard to her condition, somewhat less.

Assuming correct diagnosis and treatment as of December 1994, I find her life expectancy at that stage to be 45 years.

The reduction in life expectancy for present purposes is therefore approximately 41 years.

I deal now with the various heads upon which the assessment of damages falls to be determined.

(b)    General damages for pain and suffering and loss of amenities of life

The period over which this head falls to be assessed is not to be calculated from December 1994.  At that stage Mrs Kite’s condition remained undiagnosed and her enjoyment of life was more or less normal until she underwent the operation on 25 September 1995.

Since that time she has suffered much.  There has been developing pain and discomfort associated with progressive reductions in her physical movements and capabilities and an increasing dependence upon others.  She now walks with the assistance of a walking frame and requires help in simple tasks such as dressing and washing herself.

As well, there is the distress of the external signs of her disability, including loss of hair associated with chemotherapy, the mental anguish of her awareness of her reduced life expectancy, and the anxieties associated with her treatment, and concern for her family.

Of course, if one assumes that her condition had been diagnosed and properly treated as of December 1994, she would have had the inconvenience and discomfort associated with some treatment.  Her evident concern about her health is such that I think that she would very likely have had an abortion so that she could undertake a course of chemotherapy which, associated with radiotherapy and excision of the tumour, would have given her the best prospect of a cure.

Patients vary as to how they cope with such treatment.  The medical evidence suggests, however, that there are a good few patients who are able to lead a virtually normal life, even while undergoing treatment of that kind.

Most of the allowance under this head relates to a period which is in the past.  But a further period of about six months remains, given my estimate of her life expectancy.  I must recognise that the symptoms may well present most acutely during that last phase.

Under this head I would assess the allowance for pre-judgment losses at $40,000 and for the future, that is, for the balance of what I have assumed to be her life expectancy, say, a further $5,000.

(c)     General damages for loss of expectation of life

Having regard to the decision of the High Court in Skelton v Collins,[9] and the line of authority in which it has been followed or applied since then, the award under this head must be moderate.

[9] (1966) 115 CLR 94.

I assess this head of damages at $5,000.

(d)    Loss of capacity as a homemaker

Damages sought under this head are said to be necessary in order to compensate Mrs Kite for the loss of her ability to perform the physical tasks associated with caring for the family, including performing domestic chores and looking after her children.

As it was put by Mr Wells QC in his written submissions:

“From September 1995 to the present time, the plaintiff has ceased progressively to be able to exercise her home-making capacity.”

Relying partly on evidence as to the market cost, at hourly rates, of the provision of casual domestic help, he advanced a claim for not less than $50,000 pre-trial, and for not less than $600,000 post-trial on this head.

At the time he made his principal submissions, he was unaware, as was the Court, of the decision of the Queensland Court of Appeal in Sturch v Willmott.[10]  At that stage, Mr Wells conceded that there was no direct authority in point, but he submitted that I should recognise the community’s increased awareness of the value of the domestic contribution made by a spouse to his or her family, by including an award in the terms sought.

[10] [1997] 2 Qd R 310.

After an overnight adjournment, his attention was drawn to the decision in Sturch v Willmott, which he then embraced as supporting his proposition, although the reasoning which underlies the decision in that case did not reflect the basis upon which he initially put the claim forward.

In Sturch v Willmott, the plaintiff, a married woman with children, successfully sued a medical practitioner for damages for negligence in failing to diagnose cancer of the colon.  As in Mrs Kite’s case, the trial judge held that the consequent failure to receive timely treatment for her condition resulted in a reduced life expectancy.

In that case, the trial judge included an award of damages to reflect the value of the plaintiff’s services which she would have provided to her children up to the presumed date of her death.  But while valuing the provision of such care beyond her presumed death at $90,000, he declined to make an allowance on that head.

On appeal, the Court of Appeal (Macrossan CJ, Davies JA and Fryberg J) varied the award so as to include the amount assessed for the period following the plaintiff’s presumed death.

Two of the judges, Macrossan CJ and Fryberg J, regarded the claim which had been disallowed by the trial judge as recoverable by analogy with a claim for voluntary assistance, of the kind recognised in Griffiths v Kerkemeyer (supra).

The third judge, Davies JA, was not prepared to extend the Griffiths v Kerkemeyer principle to accommodate the claim in question.  He characterised that principle, in my view correctly, as being strictly compensatory in the sense that it addressed a need by the plaintiff to care for himself or herself.  As he put it:

“The damages in issue in this case are ..... for loss of capacity.  However, it is not a loss of capacity by the plaintiff to care for herself but a loss of her capacity to care for others.  It is difficult to see how loss of that capacity could give rise to a need in the plaintiff.  Indeed, it might be thought that the only need to which it gives rise is a need of others for whom the plaintiff formerly cared.”

A similar observation was made by Mahoney JA in Burnicle v Cutelli:[11]

[11] [1982] 2 NSWLR 26 at 37.

“I do not think that the public policy on which the Griffiths v Kerkemeyer principle is based extends to requiring that a plaintiff be compensated because others have lost the benefit of the services she would have provided to them.”

However, Davies JA went on to accept what he described as “strong policy reasons” in favour of assessing the relevant loss of capacity by reference to “commercial replacement cost”, rather than limiting the damages to accord with the traditional view that only the “frustration and feelings of inadequacy”[12] engendered by the loss of capacity be allowed for in the allowance for general damages.

[12]    Burnicle v Cutelli (supra) per Reynolds JA at 28.

After referring to a number of authorities, he concluded that:

“.... the loss or diminution of this capacity gives rise to economic loss by the plaintiff who formerly had that earning.  That loss or diminution is, in my view, analogous to a loss or diminution of caring capacity and should ordinarily be measured by the replacement cost of the services which, by reason of her loss or diminution, the plaintiff is no longer able to provide.”

With great respect to Davies JA, I am unable to accept the soundness of that analysis.

In the case of voluntary services provided by a wife and mother, the economic consequences of their loss of diminution, if suffered by anyone, are suffered by the erstwhile recipients of those services.

Insofar as he draws an analogy with loss of earning capacity, the High Court has made it clear that “an impaired plaintiff recovers not merely because his earning capacity has been diminished but because his earning capacity is or may be productive of financial loss,[13]” which means financial loss to the injured plaintiff.

[13]    Graham v Baker (1961) 106 CLR 340 per Dixon CJ, Kitto and Taylor JJ at 347.

In an endeavour to surmount the difficulty which this analysis identifies, Mr Wells at one stage of his argument submitted that the plaintiff who spends his or her time and skills in looking after a household foregoes remunerative employment outside of the home, and that this should be the index against which the loss of domestic capacity should be measured.

That argument cannot logically be sustained.  The fact is that a plaintiff who foregoes outside remunerative employment to look after a domestic household, has replaced paid services by unpaid services.  To award damages in such circumstances for the loss of the ability to perform domestic services would conflict with the principle laid down in Graham v Baker.  The same principle would be breached if the St John Ambulance volunteer recovered the same damages as his or her salaried workmate, in the event that their capacity to perform ambulance work was lost or impaired by a tortious act.

Furthermore, it would hardly seem to be right to compensate an injured homemaker who has other skills which, if utilised outside the home, could produce an income, but deny recovery to a competent homemaker who lacks such other skills
.
         There are some difficulties in assessment if the case mounted on Mrs Kite’s behalf is correct.  If the law is to compensate for loss of the capacity to perform domestic services for others, presumably the homemaker who spends all day playing pokies and feeding the family on take-away food will recover less than the homemaker who stays at home all day working in the house.  Is the court to embark on an enquiry as to the level of skill and application in performance of housework?

Other difficult questions arise, such as that posed by Weir:[14]

[14]    Compensation for Injuries and Death: Recent Proposals for Reform , The Cambridge Tilbury Law Lectures, 1st series, (1978: Klwer).

“If the capacity to give gratuitous services is a loss to the giver, ought one not to pay the pious spinster whose charitable works are inhibited by injury?”

If Mrs Kite’s claim in this regard was to be allowed for the period after her death, a serious anomaly would emerge.  Whereas the claim at common law by the receiver of services provided by her, namely, her husband’s claim for loss of services, ceases on her death,[15] the claim by the provider of the services would survive her death.

[15]    Sloan v Kirby (1979) 20 SASR 263.

In any event, the pre-judgment loss of her capacity in the relevant respect has largely been met by the award made with respect to Mr Kite’s claim for loss of services.

Mrs Kite’s inability to provide for herself is largely met by the award under the Griffiths v Kerkemeyer head of damages.

This leaves only the children.  There is some overlap in their direction from the Griffiths v Kerkemeyer award and the award in favour of their father for loss of services, as it is impossible fully to dissect the value of the services provided by a wife and mother between individual family members.  Insofar as they have not been catered for by those awards, at least after their mother’s death, they will have the ability to maintain an action under Part 2 of the Wrongs Act (1934).

An action under Part 2 of the Wrongs Act is better designed to secure their interest in recovering damages for the loss of the financial benefit which they derive from the continued existence of their mother.  After all, if a substantial damages award is made to a mother in such circumstances, there can be no guarantee that she will apply it towards the children,[16] just as there is no obligation on a plaintiff who receives Griffiths v Kerkemeyer damages to reimburse any of the award to the provider of the voluntary services the subject of the award.

[16]    In this case, I may direct payment of any judgment monies otherwise payable to Mrs Kite to Public Trustee, unless I can be satisfied of her capacity to handle the award.  But that consideration does not affect the questions of principle under discussion.

If the common law is to undergo change in this area, I think it better that the existing common law remedy for loss of services, at present only available to the husband (and in South Australia, by statutory extension, to a wife[17]) be extended to children or other dependents during the lifetime of the mother, rather than leaving such claims to be dealt with under Lord Campbell’s Act legislation.  In any case, a reduction in life expectancy due to the tortious act is exceptional.  In ordinary circumstances, where there is an impairment of the homemaker’s ability to discharge that role, it should be met by an action for loss of services by any family member affected by it.  If the ability is lost through death, Part 2 affords an appropriate remedy.  Change to the common law to give rise to this result would create far fewer anomalies and be much more consistent with basic principle than would be the case if Mrs Kite’s claim was to be allowed on any of the bases contended for.

[17]    See s33 of the Wrongs Act 1934.

Even if I was otherwise disposed to allow this head of claim, which, for the reasons which I have given, I am not, I think it better that any such radical change in the common law should be propounded by the Full Court, rather than by a judge at first instance, or by amendment to the Wrongs Act (1934).

In view of the conclusion which I have reached, further analysis of authority would be otiose.  But in case the matter should go further, I note some of the articles and authorities which have come under my attention with respect to this claim.  I have been much assisted by the perceptive article by Associate Professor John Keeler Three Comments on Damages for Personal Injury.[18]  I note also the following footnoted material, apart from that already referred to.[19]

[18]    (1984) 9 Adel LR 385.

[19]    Cummings v Canberra Theatre Trust, Federal Court, 18 June 1980, unreported; Hodges v Frost (1984) 53 ALR 373; Maiward v Doyle (1984) WAR 210; Pegrem v Commissioner for Government Transport (1957) 74 WN (NSW) 417; Simmonds v Hillsdon [1965] NSWLR 837; Franco v Woolfe (1974) 52 DLR (3d) 355; Luntz Assessment of Damages for Personal Injury and Death (3rd ed (1990) (Butterworths) para 4.1.11, p193.

(e)     Loss of earning capacity

Mrs Kite left school in 1978, having completed year 11.

She has always been interested in ladies fashion and clothing.  On leaving school, she obtained a job more or less immediately with the Adelaide store of Myer.

At first she was engaged as a casual employee, but in about March 1979 she obtained full-time work at Myer.  She became a supervisor in July 1982 at the age of 19.  She has asserted in her evidence that she was the youngest ever to be appointed to that position.

By 1984, at the age of 21, she was supervisor of half of the fashion floor, which involved approximately 25 staff.  In 1985 she was promoted to assistant customer service manager and was a member of what she describes as the Myer management structure.

In September 1986 she suffered a fall on her way home from work, during the course of which she injured her right knee.  She had extensive treatment, including surgery.  Although she returned to work for a time, her employment with Myers was terminated, apparently on the ground that she was unable to perform her work well enough having regard to the residual effects of the knee injury.  The termination of her employment was in November 1989.

The evidence satisfies me that she eventually overcame any residual disability in the knee, and that it did not operate to restrict her working capacity in the pursuits which she has since followed.

Her husband Darren Kite had a history of work as a construction worker and storeman and packer.  At about the time Mrs Kite left her employ with Myer, Darren Kite began establishing a business involving the installation of window treatments, mainly vertical blinds.  Initially he obtained work as a contractor with Kresta, but later he obtained more or less constant full-time work, still as a sub-contractor, for Victory Blinds.

In the early stages of the business, Mrs Kite worked with her husband and assisted in the installation of the blinds.  She would chain and weight them.  This function was time consuming.  She would also attend with her husband and speak to the customers after the installation was completed to explain the operation of the blinds.  At the same time, she would, while on the job, complete the paper work for him, thus saving him a considerable amount of time.

As well, Mrs Kite dealt with the preparation of invoices and receipts and maintained the other business records kept at home.

Her involvement in the business was more or less continuous except for short periods after the birth of each of her children.  But since September 1995, as her illness has overtaken her, her involvement has tapered away to the point where it is nominal only.

The business is carried on from home.  When she was well and assisting with the chaining and weighting, Mrs Kite would do this work at home overnight and early in the morning, so that the blinds would be ready for installation during the day.

Although there does not appear to be a written partnership agreement, Mrs Kite and her husband have operated the blind business in a fifty-fifty partnership, carrying on business under the name D.J. and J.C. Kite.

I accept that until her present illness overtook her, Mrs Kite was prepared to work long hours, both with the books and with preparation of the blinds for hanging.

Since Mrs Kite’s illness, Mr Kite has been obliged to compensate by working longer hours.  His evidence was that by doing so he has been able to sustain the business and maintain, on average, the number of jobs per day which he was doing when they were both active in the business.

But accounting evidence satisfies me that there has in fact been a tapering off of the gross profit of the business, that is, the profit before tax and before distribution between the two partners, of the order of $9,000 per annum.

Separately, Mrs Kite developed another business interest.  This was developed in conjunction with her sister Sally-Anne Totani.  She is a little younger than Mrs Kite.  At the time of trial, Mrs Totani was 32 years of age.  Mrs Totani and her husband have two children aged 10 and 5 years.

Mrs Totani qualified as a hairdresser and worked in the city in that capacity for a time, which coincided with the period of Mrs Kite’s employment with Myer.

In 1993, Mrs Totani noticed a vacant shop in the Lower Gorge Road Village Shopping Centre which is near where she lives.  She thought it would be a good location in which to establish a clothing business.  She discussed it with her sister.  The two of them decided to open a shop selling children’s fashions.

Most of the business arrangements for the establishment of the shop were attended to by Mrs Kite.  They agreed to carry on business in partnership; Mrs Totani and her husband on the one part and Mrs Kite on the other, with the profits being shared 50/50 between the two families.

They did not have much capital, but borrowed sufficient from a bank to set up the business, which was carried on under the name of Bella Bello for Kids.

I will refer to this business as Bella Bello for Kids (Campbelltown), to distinguish it from the business later opened under the same name at Greenwith.

Initially, the two sisters shared the workload.  Mrs Kite worked three days a week and her sister the remaining three days.  Mr Totani did not take much part in the business, but occasionally did deliveries.  That is except for one year when he worked in the business, to which I refer below.  Mr Totani has been employed throughout more or less full-time as a cleaner with a cleaning service.

Bella Bello for Kids (Campbelltown) opened for business in about November 1993.  It still trades.  But as Mrs Kite’s illness has overtaken her, Mrs Totani has assumed an increasing role.  She now runs the business virtually single-handed, with a little assistance from other family members.

Although the business appears to have been undercapitalised from the start, this appears to have been compensated for by the energetic way in which both sisters applied themselves in its establishment and maintenance, and by reason of their willingness to leave most of the profits in the business, keeping their drawings to a minimum.

In June 1994, a ladies fashion boutique in the adjoining shop premises to those in which Bella Bello for Kids (Campbelltown) was conducted, became available when the proprietress quit the business.  Mrs Kite and her sister decided to take over that business and run it in conjunction with Bella Bello for Kids (Campbelltown).  They knocked an archway through the connecting wall between the two shops, and carried on the ladies fashion business under the name Bella Moda.

Mrs Kite and her husband were living at the time at Salisbury.  In March or April 1995, Mrs Kite noticed what she regarded as another business opportunity in a new shopping centre being opened up at Golden Grove development in the nearby suburb of Greenwith.  The two sisters decided to open another shop there, taking over from an existing children’s clothing business.  They opened operations there towards the end of 1995, calling the new business Bella Bello for Kids (Greenwith).

The three businesses, that is, the two children’s wear shops and Bella Moda were all operated within the same partnership and on the same basis, that is, on the basis of a 50/50 share as between Mrs Kite on the one hand and Mr and Mrs Totani on the other.  The evidence suggests a temporary variation to a three-way split during one year when Mr Totani worked in the shop.

When the Greenwith shop was opened, the understanding was that this would be conducted by Mrs Kite, leaving it to her sister to conduct the businesses at Campbelltown.

Unfortunately, their expectation of successfully operating all three businesses did not come to fruition.

Mrs Kite was admitted to St Andrew’s Hospital for the first of her operations in September 1995, just after the lease for the Greenwith premises was signed.  Although the sisters went ahead and opened the Greenwith shop towards the end of 1995, the developing regime of treatment for the cancer and Mrs Kite’s increasing debility as the cancer progressed, made it impossible for her to continue with the Greenwith shop.  Furthermore, it was not feasible for Mrs Totani to continue operating the three businesses.

Bella Moda was closed down and sold in March 1996.  Bella Bello  for Kids (Greenwith) was sold as a going concern in December 1996.  As I have already observed, Mrs Totani now runs Bella Bello for Kids (Campbelltown) more or less single-handed.  She keeps in close telephone contact with Mrs Kite.  Mrs Kite has been trying to train her sister to do the book keeping.

There are some differences between the two accountants who were called with respect to the quantification of this head of damage, more particularly with respect to the likely future of the businesses.  Both are experienced chartered accountants, and the fact that there are differences between them in no way reflects upon the competence of either.

After hearing both at some length, I prefer the evidence of the accountant called by Mr Malycha, Mr Kennedy, in preference to the evidence of Mr Holmes who was called by Mr and Mrs Kite, where their evidence differs.

Mr Holmes prepared very detailed calculations based on the profit and loss accounts and balance sheets of all three businesses.  He projected the likely profitability of the three businesses to the year 2028, being the year in which Mrs Kite would turn 65 if she lived.  He further assumed that she would remain involved in the three businesses, and that they are and would continue to be profitable.

In my opinion, the assumptions upon which those calculations are based are unreal.  The detailed nature of the calculations creates an illusion of precision, where such a process is impossible.

In the first place, I prefer Mr Kennedy’s evidence that it is unlikely that Bella Bello for Kids (Greenwith), which was never a profitable operation, would ever have become profitable, even if Mrs Kite had not fallen ill, and if the two sisters between them had continued to operate it as part of the three businesses which they were conducting.  Furthermore, I accept Mr Kennedy’s evidence that it was likely that unless the partners could find sufficient capital to replace the money lost during the short period of operation of Bella Bello for Kids (Greenwith), it was inevitable that Bella Moda would have to be sold in order to accommodate that loss.

The proper basis upon which to calculate Mrs Kite’s loss of earning capacity is to proceed on the assumption that Bella Bello for Kids (Greenwith) would have been sold at about the time it was, and that Bella Moda would likewise would have been disposed of in order to generate sufficient capital to balance out the loss from Bella Bello for Kids (Greenwith) and enable Bella Bello for Kids (Campbelltown) to continue trading.

The two sisters between them clearly have the skills and enthusiasm to operate a clothing shop such as Bella Bello for Kids (Campbelltown).  It is to their credit that they established the business and conducted it profitably for some time, starting from scratch.

But it cannot be assumed that they would have done so indefinitely, or at least during the balance of their working lives.  If they did so, I think it likely that there would have been some changes in the nature of the operation of the businesses, for example, by the employment of some help in the shop to allow them to spend more time with their families as their children were growing up.

At this stage, the long hours being worked by Mrs Totani are a reflection of the fact that the business operation is not really turning over a sufficient amount to justify engagement of paid help.

While she has been prepared up to now to compensate for her sister’s illness, and to work for extraordinarily long hours with only a minimum of assistance from some other family members, I think it doubtful that this will go on for much longer.

At all events, looking at the situation as it might have been if Mrs Kite had not fallen ill, for the reasons which I have given, I am of the view that ultimately the two sisters would have ended up with just Bella Bello for Kids (Campbelltown) as their business operation.  Further, I am not satisfied that it would right to assess Mrs Kite’s damages on the basis that they both would have operated the business indefinitely.

On the other hand, it is clear that Mrs Kite is a most capable woman, and until she fell ill, was energetic and willing to drive herself in her two business interests, the clothing shop and the blind installation business.  I accept the evidence which indicates that she was prepared to work late into the night to assist her husband with the blind installation business, and to work long hours in the clothing shop.

If she had remained well, I think it likely that she would have continued to be involved in some sort of business activity which would have in one way or another generated an income which was a reflection of her earning capacity.

The question is, how is that loss of earning capacity to be quantified?

In the course of his evidence, which, as I have indicated, I prefer where it differs from that offered by Mr Holmes, Mr Kennedy expressed the view that a realistically sustainable broad estimate of Mrs Kite’s share of the net profit of Bella Bello for Kids (Campbelltown) before tax, speaking from now, would be of the order of $29,000.  That is on the assumption of a 50/50 split, and on the assumption that the other two businesses, Bella Moda and Bella Bello for Kids (Greenwith) were disposed of, which is, of course, what has in fact happened.

With respect to the business conducted in partnership by Mrs Kite with her husband, Mr Kennedy offered the opinion that a fair estimate of the reduction in the net profit of the business before tax which reflected her absence from the business would be of the order of $9,000 per annum.

I am of the view that that is a reasonable starting point as to the losses in that business.  In doing so, I realise that, given Mr Kite’s evidence that he has worked longer hours and still carried out approximately the same number of installations per week, the actual reduction in net profit in recent times, which is of the order I have indicated, might be a reflection of market factors.

Indeed, I think that more likely than not, it must be a reflection of other factors, not shown to be compensable and not identified in the evidence.

But on the other hand, the defendant is not to have the benefit of increased exertion of the remaining partner when one of the two partners falls ill as a result of a compensable condition.  Sometimes, it is thought to be appropriate to measure the quantum of the loss in such a case by equating it with the market cost of replacing the labour contributed by the injured partner.  But the evidence as to the actual number of increased hours put in by Mr Kite is sketchy and inconclusive.

However the matter is approached, Mrs Kite is entitled to fair compensation for her inability to be engaged in that business.  Doing the best I can on the somewhat unsatisfactory state of the evidence, I will assess the gross loss at the figure suggested by Mr Kennedy, namely, $9,000.

Mrs Kite’s gross loss, given that she shares profits equally with her husband, becomes one half of $9,000, that is, $4,500.

If one was to refine the calculations to which I have so far referred, a feasible result would be:

$
         Before tax loss of share of profits from Bella Bello
         (Campbelltown)  29,000
         Before tax loss of share of profits from the partnership
         of D.J. & J.C. Kite  4,500
  ---------
  33,500
         Less tax, say,  7,500
  ---------
         Net loss per annum  26,000
         Net loss (after tax) per week  500

In my opinion, it would be reasonable to take that figure as the starting point for calculation of future losses.

Less should be allowed for the pre-judgment period.  There was no loss before September 1995 as the impact of her condition did not start to tell on Mrs Kite until the first operation which she had then.  Thereafter, however, her condition fell away progressively to the point where her contribution to the businesses amounted to little more than telephone discussions with her sister and some assistance with the books of both businesses.

I am prepared to assume that, given a correct diagnosis and appropriate treatment, as at December 1994, Mrs Kite’s pre-trial earning capacity would have only marginally been affected.

From 25 September 1995 to the date of judgment is 2.75 years, or about 143 weeks.  I think it reasonable to assess the loss over that period on the basis of an average weekly net loss of $300.  This would give a pre-judgment loss on that score of approximately $43,000 (excluding interest).

As to the position post-judgment, as I have already indicated, Mrs Kite would have had a slightly reduced life expectancy as from December 1994, even had it not been for the failure to diagnose her condition at that stage.  I have indicated that her life expectancy as at December 1994, given correct diagnosis and appropriate treatment, as 45 years.

Looking at the matter from now, that is, three and a half years later, the balance of the period would be 41.5 years.  But it would be reasonable to assume that she would hardly be likely to work to the very end of her working life.

Furthermore, I think it hardly right to think that she would have continued to work beyond the age of 65 years.  Given that she is now 35 years, that is a further period of 30 years which is a period well within her notional reduced life expectancy of 45 years.

In those circumstances, I think it reasonable to start the calculation of this aspect of loss on the footing that she has, speaking from now, effectively lost approximately 30 years of her working life.

According to actuarial tables, the present value of one dollar per week over a period of 30 years at a discount rate of 3% is $1,038.

Before applying a weekly amount to that figure, however, some adjustment must be made for Mrs Kite’s ordinary living expenses.  But particularly in the early part of the period, much of her money would, I apprehend, have been spent for the benefit of her family, particularly her children.  No deduction should be allowed on that score.  Furthermore, the amount to be attributed to her own living expenses should be less, where there are two incomes, and part of what Mr Kite earned might reasonably be attributed towards living expenses for both of them.

Mr Stratford, for Mr Malycha, suggested a figure of $150, Mr Wells something less.  I accept Mr Stratford’s figure.

In all the circumstances, over the period in question I would assess her weekly loss, excluding her own living expenses, as an average of $500 less $150, namely, $350 per week.

I realise that the deduction for her own living expenses does not notionally commence for a further six months. But I disregard such a short period as insignificant.  $350 per week applied to the actuarial figure of 1,038 gives a gross loss of $363,300 or, say, $363,000 on this head.

In my opinion, the adverse contingencies would more or less cancel out those which might lead to a higher figure.

In all the circumstances, I would award $363,000 for future loss of earning capacity.

(f)     Voluntary assistance

Darren Kite is 36.  Mrs Kite is now 35.  Her sister Sally-Anne is 33.

Mrs Kite’s three children are now aged 7, 5 and (almost) 3.

After Mrs Kite’s marriage to Darren Kite in 1982, they built a house at Hillbank.  Later they built a larger home into which they moved at Target Hill Road, Salisbury Heights.  Mrs Kite’s parents, Mr and Mrs Kearvell, who are retired, live in a unit at Salisbury North about ten minutes drive from the Kites’ house at Salisbury Heights.

When Mrs Kite had her operations in 1995 it fell to her parents substantially to look after the three children.  They took them to school and child care, and increasingly took over the management of them.  Darren Kite, while supportive, worked extended hours in the blind installation business.

It appears that this was for two reasons.  In the first place, it was a means by which he coped with his responses to Mrs Kite’s illness.  In the second place, to a degree, it compensated for the lack of assistance in the business from Mrs Kite.  At all events, he saw little of the family.

For a time, Mr and Mrs Kearvell moved into the Kite’s house at Salisbury Heights to look after the children.  This was in October 1995 when Mrs Kite had the axillary clearance operation.  Following that operation, the district nurse called regularly for about a month to help to dress Mrs Kite.  There was a further period when Mr and Mrs Kearvell returned to their own unit, but spent most of the day at the Kite house.  Following the second operation, friends, largely Mrs Kite’s friend Carolyn Inkpen, who gave evidence before me, helped to take her to and from chemotherapy, and supported her in other ways.

Mrs Kearvell gradually took over all the washing and ironing and household chores in the Kite family home, particularly after Mrs Kite learned in about October 1997 that the cancer had spread to her liver.  For the reasons which I have explained, Darren Kite had less and less involvement in attending to the family’s day to day needs, and the burden of looking after the family shifted more and more to his parents in law.

In February 1998 there was a change in the arrangements between the two households.  Effectively Mr and Mrs Kearvell took into their home unit Mrs Kite with the three children, leaving Darren Kite at the Salisbury Heights house.  The family has agreed that it will be put on the market for sale.  In order to accommodate Mrs Kite and her children, Mr and Mrs Kearvell have obtained the use of a caravan which they have put behind the home unit.  Mr Kearvell and the eldest child, Alexander, sleep in that.

Mrs Kearvell helps her daughter to dress and shower, attends to the washing and ironing, and she and her husband take the elder children to school and the youngest child, Chanel, to child care.  They, or friends such as Carolyn Inkpen, drive Mrs Kite to hospital or to the doctors for her medical care.  Darren Kite usually calls for an hour or two at the end of the day’s work before he goes home to Salisbury Heights.

By order of the Family Court and with the agreement of Darren Kite, Mr and Mrs Kearvell have been appointed joint guardians of the three children.

The two families have reached an understanding that the Kite’s house at Salisbury Heights will be sold and a smaller house bought for Darren Kite.  What Mrs Kearvell described as a “basic four-bedroom home” will be bought to house Mr and Mrs Kearvell, Jayne and the three children.  The intention of the family is that the new home to be purchased will be put in the names of the children, with an understanding that Mr and Mrs Kearvell would have what Mrs Kearvell described as “some sort of life interest, or at least a licence to occupy it, to look after the children”.  They would sell their unit.

It will be seen from what I have said so far that at a time of their life when they might have expected to lead a quiet existence in their retirement, Mr and Mrs Kearvell have, not without a good deal of sacrifice, turned their lives upside down to accommodate the problems which have arisen due to Mrs Kite’s debilitating illness.

Out of this complex of circumstances it is necessary to identify clearly what is, and what is not, compensable.

It was made clear in the seminal decision of the High Court in Griffiths v Kerkemeyer[20] that it is the plaintiff’s loss of capacity to cope with the particular needs which the accident injuries have given rise to which results in a liability in damages on the part of the defendant.  As it was put in that case by Mason J:[21]

[20] (1977) 139 CLR 161.

[21] Ibid 192.

“The respondent’s relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services and this loss is to be quantified by reference to the value of cost of providing those services.  The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant.”

What is to be compensated for is the plaintiff’s need for services to enable her to cope with the disabilities the subject of her claim.  Those services may be nursing services or other services of an allied kind such as assistance with dressing, showering and, I suppose, transport to obtain medical treatment.  The cost of replacement of her services in the home directed towards the care of her children, or the performance of household chores for other members of her family, is not something which can be recovered under this head, although it may be recoverable in a claim by her spouse for damages per quod servitium amisit.

There is, though, a related head of damage, that is, the expenses of visits by relatives and friends to Mrs Kite when she was in hospital, particularly when she was in intensive care in January and February 1998 may conveniently be dealt with under this head.[22]  I take it that the appropriate test is that the attendance of the friends and relatives is reasonably necessary in the interests of the patient.  I accept that the quantification for damages under that head is to be approached in a “broad common sense manner”.[23]

[22]   See Wilson v McLeay (1961) 106 CLR 523.

[23]   See O’Connell v Brisbane CC (1966) WN 26.

While the damages to be awarded on the principle identified in Griffiths v Kerkemeyer are, speaking generally, to be quantified by reference to the ordinary commercial cost of the provision of such services, the award must be maintained within reasonable limits.  It must be recognised that some services rendered, for example, services rendered intermittently at very early or late hours during the day would be difficult to meet by the provision of commercially available services.

I will not attempt to itemise the hours involved, or catalogue the minutiae of assistance which Mrs Kite has been given to which regard might be had under the two headings referrable to this aspect of the matter.  Indeed, as to some aspects, very little detail was given in evidence.

It is sufficient to observe that from the time of the operation in September 1995 until now there has been an increasing dependency by the plaintiff on others for the support and assistance necessary to enable her to cope with her illness.  This will continue, on my estimation of her life expectancy, for about another six months.  It has increased in intensity over the last year or so.  She is now almost totally dependent on others to help her cope with the physical exigencies involved in living from day to day.

On this head, that is, including Wilson v McLeay damages as well as the allowance for voluntary assistance, I would allow $25,000 for the period between September 1995 and the date of judgment, and the sum of $5,000 for the future, bearing in mind the estimate of her life expectancy which I have arrived at, that is, a further six months.

(g)    Special damages

A schedule, to the date of trial, was tendered.  The schedule was agreed as to quantum only, at $69,483.30.  It is difficult to estimate what proportion of those expenses would have been incurred in any event.

Doing the best I can with this item, I would allow approximately one-third, say, $23,000.

No evidence was led which would enable me to quantify what, if any, future expenses will be incurred.  I am not prepared to guess as to that.  There will be no award for future expenses.

(h)    Mr Kite’s claims

Mr Kite’s claims arise under two heads - impairment of consortium (which includes loss of services) and Mr Kite’s share of the losses incurred in the partnership business conducted between him and Mrs Kite.

A preliminary question arises as to the period over which the assessment of the damages payable to Mr Kite should extend, more particularly whether it extends to losses suffered in the period after Mrs Kite’s death.

A claim for loss of consortium by a husband arising by reason of the wrongful injury to his wife arises at common law.[24]  It has been held that the claim terminates on the death of the wife: Sloan v Kirby[25]

[24]   Toohey v Hollier (1955) 92 CLR 618.

[25] (1979) 20 SASR 261. And see Baker v Bolton (1808) 1 Camp 493.

A claim for loss of services, that is, domestic and related services, is generically part of the common law claim for loss of consortium.  A claim by a husband for loss of services of that kind will likewise terminate on her death.

But the claim with respect to the loss of the services of Mrs Kite in the business conducted by her and Mr Kite in partnership involves different considerations.  That claim is a statutory claim advanced under s34 of the Wrongs Act 1936.  The section reads:

“(1).. Where a husband and wife are engaged in the conduct of a business, and either of them suffers an injury as a result of which his or her participation in the conduct of the business ceases or is impaired, the other spouse shall be entitled to recover from a person whose wrongful act, neglect or default caused the injury compensation for loss that he or she has suffered or continues to suffer by reason of the fact that the participation of his or her spouse in the conduct of the business has ceased or has been impaired.

(2)... In this section-

......... ‘business’ includes any professional or commercial undertaking;

......... ‘injury’ includes an injury that results in the death of a spouse.”

It is clear from the words “participation in the conduct of business ceases or is impaired” and from the definition of “injury”, which includes an injury resulting in the death of the spouse, that the claim which may be advanced under that section must be taken to survive the death of the spouse.

In the result, it seems to me that it is proper to approach the assessment of the two heads of damage upon which Mr Kite seeks an award on the footing that the claim for loss or impairment of consortium, which includes the claim for loss of domestic and related services, should be calculated by reference to the period down to the expected time of death of Mrs Kite.  On the other hand, the claim advanced under s34 of the Wrongs Act should be calculated with reference to the period represented by her life expectancy on the assumption that the negligent failure to diagnose her disease had not occurred, or for the duration of her likely participation in the partnership, whichever is less.

There is a further complicating factor.  For the reasons and in the circumstances which I have explained, effectively Mr Kite’s parents in law have taken over the day to day custody of the children and their management, which represents a part of the services which Mrs Kite would have performed in the household if her illness had not arisen when it did.  Mr Kite, on the other hand, now lives alone in the former matrimonial home.  In that respect he has compensated for the loss of such of the services which were rendered by Mrs Kite with respect to housekeeping and the like which related to him, as opposed to other members of the family, by his own exertions.

Of course, the loss or impairment of consortium in this matter was progressive, commencing from September 1995, leading, as it did, to the eventual division of the household and the amalgamation of that part of it as related to Mrs Kite and the three children with the household conducted by Mr and Mrs Kearvell.

There is a difference of judicial opinion as to whether or not a claim for loss of services is maintainable by a husband where the services previously rendered by his wife have been taken over by the family members.[26]  In the particular circumstances of this case, I do not, however, accept that the defendant should derive any benefit out of the extraordinary exertions which have been put into the replacement of their daughter’s services in that respect by Mr and Mrs Kearvell.

[26]   See Luntz para [10.1.5] at page 452, and in particular the decisions appearing in footnote 14.

It is only possible to approach the assessment of this head of loss in a global fashion, allowing what seems to be a moderate but fair amount, keeping in mind that the loss has been progressive, the major part of it having been suffered in the latter part of the period only.  I deal with each element separately.

(i)     Loss of consortium, including loss of household services

Doing my best to balance out the various factors to which I have referred, I would assess the loss recoverable by Mr Kite on this head to the date of judgment at $22,500, and assess the amount recoverable for the balance of the likely life expectancy of Mrs Kite, that is, a further six months, at an additional $5,000.

(ii)    The s34 claim

I have already referred to some general considerations bearing on the process of assessing this claim.

As I have explained, unlike the claim for loss of consortium, it should be calculated by reference to the more extended period to which I have referred.

Again, the diminution in the contribution made by Mrs Kite from September 1995 until the date of judgment with respect to her participation in the partnership business has been progressive.  I think that effectively from some time during the latter half of 1997 her contribution has virtually ceased to have any economic value, given Mr Kite’s evidence that even with respect to the book keeping aspects of the business, this has, to a certain extent at least, been taken over by his father in law.  The loss will, of course, be total from the date of judgment.

I have already dealt at some length with the considerations which seem to me to be relevant to the calculation of the corresponding loss suffered by Mrs Kite.  I see no reason why I should not adopt the same starting figure, namely, $9,000 gross, in the case of Mr Kite’s claim. Mr Kite’s proportion of that would be 50% or $4,500, say, $3,000 per annum after tax.

The period pre-judgment is 2.75 years.  But the loss in the early part of that period would not be at the same level as at the end of the period.  In all the circumstances, I would award for the period pre-judgment the sum of $6,000.

For the period post-judgment, it is necessary to calculate the damages on an actuarial basis.  For this I would adopt $3,000 per year or $57.70 per week as the net loss to Mr Kite.  As in her case, I do not think that it would be right to project his loss of earnings over his full life expectancy.  I use the same period as in her case, namely, 30 years.  The same period is appropriate, as when she ceased to be involved in the business the losses caused by her disability would cease.

The multiplier for that period at a discount of 3% is $1,038, which would result in an overall award of $59,893.  There is no reason to think that any contingencies, one way or the other, would not balance out.  I would award $59,900 on this head.

1. Interest

The pre-trial components of the award attract interest pursuant to s30C of the Supreme Court Act 1935.

The interest rate for non-economic losses is to be taken as 4%.[27]  The same rate applies to the allowance for voluntary assistance.[28]  The rate which I will have in mind with respect to economic losses is 8%.

[27]   Wheeler v Page (1982) 31 SASR 1; MBP v Gogic (1991) 98 ALR 193.

[28]    Calvaresi and Anor v Lawson & Anor (Full Court) (1995) 184 LSJS 147.

Of the total special damages agreed as to quantum, $2,546.26 has been paid personally by or on behalf of Mrs Kite.  It is not possible to identify whether or not the payments amounting to that figure relate to items which she would in any event have incurred.  I am, therefore, not able to make an award of interest with respect to special damages.

The maximum period over which I would allow interest on the items as to which it is allowable, is from September 1995, or 2.75 years.  Where the losses accumulate over the period, the usual practice is either to halve the period or to halve the interest rate.

I will assess the entitlement to interest in a lump sum, bearing in mind that approach and the interest rates to which I have referred.

The second action

I have already explained that in this action the defendants, Mr Malycha and his company, are alleged to have been in breach of contractual and fiduciary duties.  Mrs Kite points to Mr Malycha’s failure to advise Mrs Kite that he had notified his professional indemnity insurer of a possible claim against him; and his alleged failure to give her access to notes and other information concerning her condition, after realising that a claim against him could possibly be made.

In the absence of any special dealing between them, the contract struck between a doctor and a patient obliges the doctor “to advise and treat the patient with reasonable skill and care”.[29]  Separately from the duties arising in contract, “whilst duties of a fiduciary nature may be imposed upon a doctor, they are confined and do not cover the entire doctor-patient relationship”.[30]

[29]   Breen v Williams (1996) 186 CLR 71 per Brennan J at 78.

[30] Ibid per Dawson and Toohey JJ at 92.

No doubt the content of the fiduciary duties may vary according to the circumstances of the relationship between the parties.  Generally speaking, the fiduciary duty will extend to maintenance of the confidentiality of information furnished by the patient and the state of his or her health.

In the statement of claim filed in this action, after referring to the history of Mrs Kite’s treatment by Mr Malycha and the fact that on 1 December 1997 she commenced the other action, Mrs Kite then goes on to plead that on about 27 September 1995 by letter of that date the defendants informed Medical Defence Association of South Australia, which I assume to be their professional indemnity insurer, of circumstances giving rise to Mrs Kite’s right to claim damages.  She goes on to plead that in the circumstances:

“.... the defendants or one or other them owed to the plaintiff a fiduciary duty of good faith and loyalty, including a duty to avoid a conflict between their duty and interests and the interests of the plaintiff.”

Mrs Kite then goes on to plead alleged breaches of the fiduciary duty which she particularises in the following paragraph in the statement of claim:

“13... From about September 1995 onwards, the first defendant in breach of his fiduciary duty to the plaintiff, failed to disclose to the plaintiff:

(a).... that he either had or had the means to have a copy of the biopsy report from the pathologist faxed to his practice on 2/12/94; and couriered at about the same time;

(b)... that she could obtain a copy of the pathologist’s report from him;

(c)... that the biopsy report showed that the lump was cancerous in December 1994;

(d)... that she could obtain a copy of the report of the pathologist who carried out the analysis of the aspiration needle biopsy in early December 1994;

(e)... that because there was no evidence of lymph node or gland involvement in December 1994 when he first saw her, her prognosis was not altogether different;

(f).... that he had given notice to his professional indemnity insurer because he thought she might have a claim against him;

(g)... that there was therefore a conflict of interest and duty in his continuing to be involved in her treatment without her fully informed consent;

and thereafter continued to be involved in her treatment without disclosing the matters referred to in sub paragraphs 13(a) to (g) herein and so as to keep himself informed as to the potential claim against him, and at the same time keep her less informed, and for which failure the second defendant is vicariously liable.”

Separately she pleads implied terms of the contract by which Mr Malycha or the company were engaged as follows:

“14... It was an implied term of the contract of engagement between the plaintiff and the first defendant, or alternatively the second defendant, that he or it would:

(a)keep confidential information obtained or arising from the relationship of patient and doctor;

(b)not act in a manner which would be in conflict with his or its duty to her or her interests;

(c)make proper disclosure to her of matters relating to her condition and treatment which came to his or its attention in the course of her treatment;

(d)provide her access to his or its notes in accordance with AMA guidelines as laid down in AMA Policy 11/93;

(e)enable her to obtain access to information affecting her rights in the event of a conflict of interest or duty arising.”

Mrs Kite then pleads as particulars of alleged breach of the contract all of the matters set out in paragraphs 13(a) to 13(g) of the statement of claim (inclusive), and as well alleged failures to advise of the notification to the professional indemnity insurer; an alleged failure to keep confidential information obtained or arising from their relationship; an alleged failure to provide access to the case notes in late October 1997; and

“.... being aware that she was suffering terminal illness, failed to facilitate St Andrew’s Hospital, South Terrace, Adelaide, in providing the plaintiff with a copy of her hospital records relating to the treatment of the plaintiff at that hospital at a time when there was a conflict of interest in so treating her”.

The plea as to the alleged loss and damage flowing from the asserted breaches of contractual and fiduciary duties is cast in the following terms:

“17... The plaintiff lost the opportunity to assess the merits of her claim and bring an action against the first defendant at a time when she was fit and able to do so without undue distress and inconvenience and without being in a seriously disadvantaged position.”

An additional plea asserts that the defendants acted in “contumelious and contumacious disregard of the plaintiff’s rights”, and that the conduct was within the meaning of s52 of the Trade Practices Act 1974 (Cth) and s56 of the Fair Trading Act 1987 (SA) misleading or deceptive or likely to mislead and deceive.

In this action Mrs Kite claims damages including exemplary damages.

In my opinion, the evidence does not make out any of the elements of any of the causes of action pleaded.

I am satisfied that Mr Malycha was not aware of the terms of the cytology report arising from the fine needle biopsy performed by him in December 1994 until 31 October 1997.

Furthermore, it was not until Mr Malycha became aware of the histopathology report following the excision performed on 25 September 1995 that he took the view that there was the potential of a claim against him.

It might well be thought that at that time, given his state of knowledge of the relevant circumstances, he was being over cautious.  Absent any knowledge of the cytology report generated in December 1994, his diagnosis of hydradenitis at that stage is a diagnosis which several eminent surgeons, who have given evidence before me, having regard to his clinical examination performed at that stage, likewise would have reached.

Nonetheless, he notified his professional indemnity insurers as a precaution on the footing that the fact that he thought that he had missed the correct diagnosis on his clinical examination performed in December 1994 could expose him to a possible claim.

Once having recognised that there was a possibility of a claim against him, and given that there were no doubt other medical practitioners who were competent and qualified to take over her treatment, he owed a duty to address the situation.  His explanation of what he did appears in the following passage of evidence given during the course of his cross-examination:

“A.... As I recall it, I discussed it at work with a couple of my colleagues and said ‘I need help with this patient.  I need someone to take care of her’ and that was how I was going about it.

Q...... That was before 3 October.

A...... I believe so, certainly this was a progressive thing.  It started from the receipt of the pathology report.

XXN

Q...... why is it at that time you felt you needed help in attending to her.

A...... I had seen this girl in September 1994, I saw her again afterwards, and I told her the cancer she had, whatever it was, had been present at the time I had seen her first, and I had missed it.  She understandably had concerns about me, and I did not handle that very well.  It was a very difficult position, still is.

Q...... I understand.  You say you made contact with Mr Carter at about this time.

A...... I was talking to people throughout that time, so it wasn’t one episode.  People were giving me advice at work, as it were.

HIS HONOUR

Q...... Advice as to how to treat her, or advice as to how to handle the situation from an ethical point of view.

A...... No, that didn’t come into it at any stage.  It wasn’t discussed in those terms.  The ethics are quite clear that someone else should take care of her, and whilst that is happening she should not be bereft of any medical support.

Q...... All this happened in those few days after the 25th.

A...... Yes, during the course of that few days I tried to support her with the help of Dr Rogers and Anne Taylor and tried to help her at the time, but it was very limited in what we could achieve, and I think I could understand why.”  (emphasis added)

I accept Mr Malycha’s evidence that he recognised an obligation to have somebody else take over the treatment if Mrs Kite so desired.  In the circumstances which unfolded, he assisted her to do so.  In particular, on her suggestion that Mr Melville Carter take over her treatment, he wrote to Mr Melville Carter and explained the history of his treatment of her to that date.  At Mrs Kite’s request, he assisted Mr Carter in the axillary clearance operation which was performed on 19 October 1995.

There was nothing untoward in his assistance given to Mr Carter in that operation, in that it was at her request.  She thought it important that he be present at the operation because of his knowledge of the condition which was exposed when he had operated on her in September.

Thereafter it does not appear that Mr Malycha had anything further to do with her treatment, which was taken over by Mr Melville Carter and others.

It was in October 1997 when Mrs Kite’s friend Carolyn Inkpen went to Mr Malycha’s rooms that, on Mrs Kite’s behalf, Mrs Inkpen asked Mr Malycha’s secretary for Mrs Kite’s case notes.  I accept the evidence of the witness Diane Cahill that she was the secretary who dealt with Mrs Kite and Mrs Inkpen on that occasion.  I accept her evidence as to what transpired.  I accept that she got out Mrs Kite’s notes after Mrs Kite and Mrs Inkpen had explained that Mrs Kite was going to go to Germany for further treatment and wanted details of her treatment by Mr Malycha.

Mrs Cahill at first offered to have Mr Malycha write a letter summarising it, as she thought that would be more helpful for anyone who might become involved with Mrs Kite’s treatment.  But Mrs Kite and Mrs Inkpen said there was insufficient time for that.  Mrs Cahill then volunteered to photocopy any information from the file which she thought might be of help.  She looked through the file and photocopied some of the test results, including the histopathology result emanating from the operations which had before then been performed in September and October 1995.  She handed over the documents which she photocopied and there was no further discussion.

She did not remember any discussion about a fine needle biopsy, or see the results of any such procedure on the file.  I am not satisfied that there was any request at that stage for the report of it to be produced.

Mrs Inkpen rang Clinpath after she and Mrs Kite had called at Mr Malycha’s rooms.  She arranged for a copy of the cytology report to be sent to her by Clinpath.  She then showed it to Mrs Kite.  Clinpath contacted Mr Malycha, and he obtained a copy at about the same time.  This was on about 31 October 1997.  So that Mrs Kite and Mr Malycha ascertained the existence of the Clinpath report and its contents at about the same time.

It does not seem to me that against that background it could be said that there was either a breach of contract or a breach of any fiduciary duty on the part of Mr Malycha or his company.  In particular, I do not think that there is any fiduciary or contractual duty to inform a patient in such circumstances that the professional indemnity insurer has been notified.

Ordinarily it would be sufficient for a medical practitioner in those circumstances simply to say to the patient that it might be suggested that he or she had been at fault in some way in failing earlier to make the diagnosis, and in those circumstances the patient might prefer to engage someone else.  Whether or not the medical practitioner happens to be insured and has notified the insurer, are not matters which, in my opinion, there is any obligation to disclose.  They are strictly res inter alios acta.

Neither do I think that there is any breach of the duty owed to the patient to notify a professional indemnity insurer.  It is in the patient’s interests that the insurer be notified.

Discharge of the ethical obligations cast on a medical practitioner in these circumstances must be considered in the context of the desirability of ensuring that the ongoing treatment of the patient is not prejudiced.  The health and welfare of the patient is a central consideration.  I do not see that the medical practitioner is under an obligation to promote a claim as opposed to seeing to it that someone else takes the patient over.

Mrs Kite had voiced her dissatisfaction with Mr Malycha’s treatment of her and had expressed the view that she had no longer a confidence in him.  He then recognised the need for someone else to be engaged, and assisted in ensuring a smooth transition of Mrs Kite’s medical management to Mr Melville Carter.

There is nothing in the suggestion that at a later stage there was any breach of Mr Malycha’s duty towards her with respect to release of his notes or information.  Mrs Kite obtained a copy of the cytology report which emanated from his examination of her in December 1994, before Mr Malycha did.  Mrs Kite was dealt with in a manner which was entirely consistent with Mr Malycha’s duties, when she and Mrs Inkpen called at the rooms in October 1997.  I am not satisfied that there was any request made then for the notes to be handed over.  But even if there was, there would have been no obligation to do so.[31]

[31]   Breen v Williams (supra).

In these circumstances, neither of the statutory causes of action are made out.  Indeed, in his final address, Mr Wells QC did not trouble to refer to them.

This action must be dismissed.

CONCLUSIONS

Action No 1621 of 1997

A.     Mrs Kite’s claim

Past	Future
$	$
General damages for pain and suffering and loss of amenities	40,000	5,000
Loss of expectation of life	5,000
Loss of earning capacity	43,000	363,000
Voluntary assistance	25,000	5,000
Special damages	23,000
----------	-----------
136,000	373,000
Interest on past losses	8,600
----------
144,600
Add future losses	373,000
----------
Total award	517,600
----------

B.     Mr Kite’s claim

Past	Future
$	$
Loss of consortium, including loss of services	22,500	5,000
The s34 claim	6,000	59,900
---------	--------
28,500	64,900
Interest on past losses	3,100
---------
31,600
Add future losses	64,900
---------
Total award	96,500
---------

There will be judgment in this action for Mrs Kite for $517,600 inclusive of interest, and for Mr Kite for $96,500 inclusive of interest.

Action No 141 of 1998

This action is dismissed.

I will hear the parties as to the costs of both actions, and as to the payment and application of the judgment monies.