Kennedy v Malhotra

[2024] NSWSC 576

Supreme Court

New South Wales

Medium Neutral Citation:

Kennedy v Malhotra [2024] NSWSC 576

Hearing dates:

2, 3, 4, 5, 8 April 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   Judgment for the defendant.

(2)   The plaintiff is to pay the defendant’s costs.

(3)   Grant liberty to apply should either party seek a variation of the costs order.

Catchwords:

NEGLIGENCE – General practitioner and patient –where plaintiff alleges that her general practitioner failed to advise or inform her of the need for cervical screening – where plaintiff now suffers from cervical cancer – whether the defendant was obliged to “follow up” on whether the plaintiff had undergone cervical screening – whether s 5O of the Civil Liability Act applies

NEGLIGENCE – Causation – Medical negligence –whether, absent the defendant’s negligence, the plaintiff would have undergone cervical screening at a time when her condition was treatable

NEGLIGENCE – Damages – damages sought for both economic and non-economic loss – assessment of likely future earning capacity

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5O

Cases Cited:

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

Grinham v Tabro Meats Pty Ltd [2012] VSC 491

Husher v Husher (1999) CLR 138

Kite v Malycha (1998) 71 SASR 321

Koziol v Anasson [1997] FCA 803

O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330

Rogers v Whitaker (1992) 175 CLR 479

Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1984] AC 871

Skelton v Collins (1966) 115 CLR 94 at 121

South-western Sydney Local Health District v Gould [2018] 97 NSWLR 513

Sparks v Hobson (2018) Aust Torts Reports 82-372

Tai v Hatzistavrou [1999] NSWCA 306

Young v Central Australian Aboriginal Congress [2008] NTSC 47

Category:

Principal judgment

Parties:

Athena Kennedy (Plaintiff)
Deepika Malhotra (Defendant)

Representation:

Counsel:
D Toomey SC and J Thompson (Plaintiff)
M Gerace SC (Defendant)

Solicitors:
Beilby Poulden Costello (Plaintiff)
Moray and Agnew (Defendant)

File Number(s):

2023/00440199

Publication restriction:

Nil

JUDGMENT

1. This is a professional negligence action brought by a patient against a general practitioner.

2. The plaintiff is currently 42. Sadly, she suffers from cervical cancer. Her life expectancy is limited. She seeks damages from the defendant, arising out of alleged failures by the defendant to advise or inform her that she should be undertaking preventative screening in the nature of Pap smears or cervical screening tests (“CST”) during the period 2014 to 2019.

3. It is notable that in this case the plaintiff says not just that the defendant failed to remind, inform or advise her of the need for such preventative screening, but that, according to the plaintiff, when the plaintiff raised the issue with the defendant, (which she says she did on a regular basis) she was informed that it was not necessary for her to undergo such preventative screening because she was not sexually active (that is currently at the time when the issue was raised).

4. On the plaintiff's case, she thus did not seek out, organise or undergo such preventative screening because she understood from the advice given to her by the defendant that such screening was not necessary or recommended as a preventative measure.

5. The parties agree (and there can be no doubt about this) that if such advice was given, it was wrong. The need for cervical screening in women between the ages of 25 and 74 is not dependent upon whether the woman is sexually active around the time the screening might be undertaken.

6. The defendant's response to these allegations is to reject them. The defendant says that she did not give such advice; she never has and never would. The defendant points to her notes and records as being inconsistent with and contrary to that essential allegation raised by the plaintiff. Her notes record her telling the plaintiff about the need for cervical screening and the plaintiff responding (at times) to the effect that she’d undertaken such screening.

7. Because of the state of the plaintiff's health, the proceedings were brought on quickly. The exchange of evidence was only concluded shortly before the commencement of the hearing. The plaintiff served her evidentiary statement in December 2023. The defendant served her evidentiary statement in March 2024.

8. At the time of the filing of the statement of claim and the preparation of the plaintiff's evidentiary statement, the notes, and records of the consultations between the defendant and the plaintiff were not available. The medical practice where the defendant had consulted with the plaintiff during the period subsequent to 2014 had shutdown. Only through investigations of the solicitor for the defendant and a subpoena issued to an IT company which had previously been engaged by the medical practice did the medical records become available. They were thus available to the defendant at the time that she completed her evidentiary statement.

9. Subsequent to the finalisation of the evidence, the plaintiff gave notice of an intention to amend the statement of claim. The amendments were substantial in terms of the particulars of breach. However, the plaintiff did not resile from her primary allegations (to which I have already referred). Nor did she serve any additional evidentiary statement. She did not, in evidence in chief, seek to alter her evidentiary statement. She did not seek to change the material facts on which she relied.

10. The primary case (based on the matters to which I have already referred) was put in cross-examination to the defendant. She rejected the propositions. Having said that, the focus of the oral evidence was very much on what emerged as an alternative case based on the additional particulars of negligence.

11. The plaintiff seeks to establish that the scope of the duty of care imposed on the defendant during the period when the plaintiff was consulting the defendant for a range of medical issues was such that there was an obligation on the defendant to be proactive in reminding, urging and even arranging for the plaintiff to undergo preventative cervical screening.

12. The defendant’s response to this alternative case is again not to say that there could not be any obligation (consistent with the obligation to exercise reasonable care) on a general practitioner to raise the need for cervical screening but rather to suggest that, based on her usual practice and her notes and records, the defendant did everything that was required and appropriate in terms of raising the issue with the plaintiff.

13. The plaintiff and the defendant served evidentiary statements, and both gave oral evidence, including extensive cross-examination. There was oncological evidence from Professor Jonathan Carter and Dr David Nunns. They met in conclave and prepared a joint report. The report was admitted into evidence without objection. They were not required for cross-examination.

14. The plaintiff relied on evidence from an expert general practitioner, Dr James Lynch. Dr Lynch also gave oral evidence. The defendant also relied on an expert general practitioner, Dr Kenneth Dobler. Dr Dobler prepared a report and gave oral evidence. In view of the urgency with which the matter came on for hearing, the doctors were unable to meet in conclave and I directed that they give evidence in the usual way, that is in the plaintiff’s and defendant’s cases.

15. Although damages were not agreed entirely, some aspects of damages were agreed. There was little cross-examination of the plaintiff on damages issues. Of course, the case is very significant to both the plaintiff and the defendant. Fortunately, the case was pursued by the parties in a very competent, professional and co-operative way.

The need for cervical screening

16. Before considering the specific evidence, it is necessary to say something about cervical screening.

17. I have been provided with extensive expert evidence on the need for cervical screening, the development of cervical cancer and how it may be prevented and treated.

18. The Australian Government National Cervical Screening Program guidance states:

“National screening strategies are inclusive of all women. In Australia, women are eligible for a Cervical Screening Test if they are:

i. Aged between 25 and 74;

ii. Sexually active or ever have been;

iii. Have a cervix.”

19. Regular cervical screening prevents approximately 70% of cervical cancer deaths. The vast majority of cases of cervical cancer develop as a consequence of infection with the oncogenic (cancer-causing) human papilloma virus (“HPV”). This is said to be a common virus among sexually active adults. Infection is usually transient but in a small number of individuals the virus can persist and lead to a precancerous change called cervical intraepithelial neoplasia (“CIN”). This can be present for up to 10 years before becoming an invasive cancer.

20. CIN can be detected by cervical screening using a combination of cervical cytology and/or HPV testing. A positive screening test results in colposcopy referral. When CIN has been diagnosed it can be effectively treated by a single outpatient local excisional treatment. The likelihood of future occurrence of an invasive cancer is then less than 1%.

21. Early-stage cancer (stage 1) is usually managed surgically as the disease is contained to the cervix. Later stage cancer of the cervix is managed by radical hysterectomy and pelvic node dissection. More advanced disease is usually managed with chemoradiotherapy, without surgery.

22. Prior to December 2017, cervical cancer screening in Australia was a cell-based examination of the cervix. It seems that the name ''Pap test” comes from the description originally provided by George Papanicolaou, the Greek physician. The Pap test involved inserting a speculum into the vagina, visualising the cervix and wiping a brush over the surface. The cell materials were then sent for examination. Prior to 2017, the national guidelines suggested that women should present every two years for collection of the cervical swab. The screening should start two years after a woman became sexually active and cease at the age of 70.

23. The procedure is invasive. It seems that compliance with the correct procedure is as low as 60%.

24. In 2017, the government introduced radical change to cervical cancer screening. As it was known that most cervical cancer was associated with HPV infection, a new program was introduced to search for genetic material of HPV in a cervical swab rather than look for precancerous or cancerous cells.

25. The new test is called a cervical screening test (“CST”). It offers benefits over the old Pap smear and, significantly, the frequency of screening has been reduced to every 5 years starting at the age of 25 and ceasing at the age of 74.

26. There is a cervical screening register. Once on the register, a woman would receive a reminder every five years as well as prompts should they not attend for a CST.

27. There are thus national guidelines as to when and how often a woman should have a Pap smear. There is a national register through which reminders will be sent at the appropriate times. However, there is no guideline or standard which specifies when and how often a general practitioner should advise the patient of the need to have cervical screening or remind the patient of the times when she should be having cervical screening. I will comment further on this later in this judgment.

Amended statement of claim

28. It is necessary to say something further about the amended statement of claim.

29. The statement of claim was amended shortly prior to the hearing and after the plaintiff had received the defendant’s statement. That is not necessarily unusual. Proceedings will often be commenced in these types of matters without the plaintiff or solicitors having the benefit of the medical records. In a case involving treatment over a lengthy period, the plaintiff may be uncertain or mistaken as to when she was treated and for what purposes.

30. Having said that, the significance of the amended statement of claim in this matter is that, although the plaintiff continued to maintain that the defendant positively informed her that a Pap smear was not necessary, the plaintiff added what I will describe as an alternative case. The plaintiff added particulars of treatment and recommendations she had received from 2018 and added a number of particulars of negligence. However, the material facts pleaded by the plaintiff in respect to the period up to September 2018 remained the same. They are:

“On 22 January 2014, the plaintiff attended upon the defendant, for the first time, for medical treatment in relation to, inter alia, swelling in her neck.

In the course of a follow-up appointment, the precise date of which the plaintiff is unaware, the plaintiff:

(a) Informed the defendant that she had a history of heavy menstrual bleeding and painful menstrual cramps; and

(b) Sought the defendant’s advice as to whether she, the plaintiff, ought to undergo a pap smear.

The defendant then told the plaintiff words to the effect of: “A pap smear is not necessary, because you are not currently sexually active.”

Over the ensuing 4 years and 8 months, the plaintiff consulted the defendant for medical treatment and advice, on 28 occasions.

Throughout the period, the plaintiff regularly sought the defendant’s advice as to whether she ought to undergo a pap smear.

On each of those occasions, the defendant told the plaintiff words to the effect of: “A pap smear is not necessary, because you are not currently sexually active.”

At no stage during the period 22 January 2014 to 16 November 2019 did the defendant:

(a) Advise the plaintiff that she ought to undergo a pap smear, or Cervical Screening Test (CST);

(b) Refer the plaintiff for a pap smear or CST; or

(c) Take any steps to satisfy herself of the fact of, or result of, any such test the plaintiff might previously have undertaken.”

31. For the period 8 September 2018 onwards, the plaintiff added additional material facts relating to the treatment afforded to the plaintiff in September 2018, suggesting that she should have referred the plaintiff to a specialist for a Pap smear or offered to undertake one there and then.

32. The particulars of negligence in the further amended statement of claim may be summarised as follows:

1. failing to appreciate that the plaintiff, as a female who had previously engaged in sexual intercourse, was at risk of infection from osteogenic HPV;

2. failing to advise the plaintiff that she was at risk of infection which, if not detected and treated, could lead the development of cervical cancer;

3. informing the plaintiff that it was unnecessary for her to undergo a Pap smear and/or CST;

4. failing to advise the plaintiff of her eligibility for cervical screening through the National Cervical Screening Program;

5. failing to perform a Pap smear in the defendant's rooms;

6. failing to refer the plaintiff for a Pap smear;

7. failing to advise the plaintiff of the importance of undergoing a CST;

8. failing to inform the gynaecologist in the first pelvic ultrasound referral that the plaintiff needed to undergo a CST;

9. failing to request of the gynaecologist that a CST be undertaken;

10. failing to enquire of the plaintiff in the period 29 September 2018 and following as to whether she had undergone a CST;

11. failing to satisfy herself that the plaintiff had undergone a CST;

12. failing to enquire with reference to the cervical screening register or otherwise as to whether the plaintiff’s cervical screening was up-to-date as at April 2015 or any time subsequently until 13 December 2019.

The plaintiff

33. The plaintiff is an educated and intelligent woman. She was born and raised in Iran where she lived until the age of 25. Her father died in 2015, and her mother and brother live in Slovenia. After completing her schooling in Iran, she completed a Bachelor of English Language Translation in Iran and then spent two years working as a translator in Iran.

34. In 2007 she moved to Dubai, where she commenced her career in human resources, global mobility and recruitment. In March 2012, she came to Australia for a holiday and ultimately decided to stay here permanently. She became an expert in recruiting work for the oil and gas industries and became aware that her skills were well sought after. Indeed, her original employer sponsored her application for a temporary employment visa. During the period 2012 to 2022, she worked in various jobs. It must be, as she herself said in her evidentiary statement, that she had a bright future ahead of her. She was multilingual and well-travelled.

35. She first became aware of her potential diagnosis on 20 May 2020. She underwent treatment. A 12-month follow-up scan performed on 26 November 2021 showed no evidence of metastasis. She was in remission. By this stage, she was seeing a new GP.

36. Unfortunately, in November 2022 she began to develop severe pain in her abdomen and became unwell. At her three-monthly cervical checkup in December 2022 with a radiation oncologist, the results were clear. However, by May 2023 her symptomatology had increased. She was referred for a CT scan which showed a recurrence of the cervical cancer. It was ultimately discovered that it had metastasised at multiple sites through her body. She has been informed that the cancer is incurable. She has been undergoing extensive treatment.

37. She gave evidence with courage and determination under considerable adversity. She was in obvious pain and discomfort. She spoke softly but clearly. As far as I can determine, she speaks English perfectly.

The defendant

38. The defendant is a registered general practitioner. She obtained a medical degree in 1993 and migrated to Australia shortly thereafter. In 1995 she completed her qualifications to practice in Australia and commenced internships at hospitals in New South Wales. She has been practicing as a general practitioner since about 1995/1996. In 2008, she obtained a fellowship with the Royal Australian College of General Practitioners.

39. During the period of 2012 to 2019, she was employed full-time at the Forum Medical Centre at St Leonards before it closed. Since that time, she has been conducting full-time practice at an adjacent Medical Centre.

40. She provides general care to patients with a special interest in women's health and paediatrics. She was the only woman doctor at the Forum Medical Centre and mainly saw women patients at that practice. Other than the primary allegations raised in this case, there is no reason to conclude that she is other than a professional and well-qualified doctor, specialising in general practice.

41. On her own evidence, she knew and was familiar with the protocols for preventative screening for cervical cancer during the period that she worked at the Forum Medical Centre. It was not put to her that she only became familiar with the recommendations and protocols for the purposes of this case.

The plaintiff’s evidence

42. I have already referred to the plaintiff's background and some of the difficulties she is now suffering. In this part of the judgment, I will focus on her evidence as it is relevant to the question of liability.

43. Firstly, although she says in her evidentiary statement that she first consulted the defendant in 2012 (and continued to maintain that in the witness box), it must be that she first consulted the defendant in 2014. Indeed, her recollection of when she first consulted the defendant as set out in paragraph 19 of her evidentiary statement is generally consistent with her first consultation in 2014.

44. As her evidence is obviously critical to the outcome, I include the relevant paragraphs as follows:

“19. During my first consultation with her in 2012, Dr Malhotra referred me for a blood test. It was during the subsequent consultations, when discussing the results of that blood test, that I first informed Dr Malhotra of my history of heavy periods and menstrual cramps. She asked me if I had had a Pap smear. I said no. She told me that my last relationship was a long time ago and that I didn’t need one.

20. In response, Dr Malhotra told me words to the effect of: “A pap smear isn’t necessary, because you are not currently in a sexual relationship”. My last sexual relationship had been in 2009, before I moved to Australia.

21. I subsequently became a regular patient of Dr Malhotra’s. From 2012 to 31 August 2019, I saw her approximately once every 3 or 4 months (on average); initially for management of my iron deficiency, also in relation to various other medical issues, as and when they arose.

22. Throughout the whole of that period, I regularly asked Dr Malhotra whether I needed a pap smear, because I knew that they were important. I estimate that I asked Dr Malhotra that question at least 2 – 3 times per year. On each occasion, she told me that I did not need one because I was not sexually active.

23. On each of those occasions, Dr Malhotra responded with words to the effect of: “You don’t need a pap smear because you don’t have a partner, and you haven’t been sexually active.” I trusted Dr Malhotra’s advice, and saw no reason not to follow it.

24. In around July or August 2018, I consulted Dr Malhotra in relation to heavy periods, and she referred me for a gynaecological ultrasound. When I next consulted with her, Dr Malhotra told me that the results of that ultrasound were “all fine”.

…

31. On 20 May 2020, Dr Malhotra told me I had tested positive for HPV16. Despite the positive result Dr Malhotra told me words to the effect of: “It might not be anything serious. You can check again in a couple of months.”

32. I vividly recall something else that Dr Malhotra said during that consultation on 20 May 2020, immediately after she told me I had tested positive to HPV16: “But we always said you didn’t need a pap smear.” I am still haunted by those words, to this day.” (Emphasis in original)

45. It was put to the plaintiff in cross-examination that it was the defendant who would raise with the plaintiff the need for a Pap smear but the plaintiff maintained that was incorrect and that it was the plaintiff who would raise with the defendant whether she should be having a Pap smear. The plaintiff maintained that the advice she was given about the need for a Pap smear was as set out in her statement.

46. The plaintiff was cross-examined at length having regard to the defendant's notes and records and the defendant's own statement.    

47. The plaintiff was taken through most of her consultations with the defendant even though some of the material was not relevant to issues in these proceedings. Through this approach, the defendant was able to demonstrate that, except in respect of the issue of Pap smears, the defendant's notes seemed to be generally consistent with the plaintiff’s recollection of what occurred. This was a way of demonstrating that the doctor was not in the habit of making inaccurate notes or notes which were completely inconsistent with that which occurred in the consultation.

48. Having said that, the plaintiff understandably had a poor memory of some of the other treatment recommendations by the defendant. Emphasis was placed on the plaintiff’s thyroid condition. Again, the plaintiff generally agreed with what was put to her about the thyroid condition.

49. The plaintiff answered many questions by stating that she did not remember without necessarily denying the propositions put to her. It seemed to me that she was not generally disputing what was put to her about other complaints and treatment. She did occasionally disagree with propositions put to her about seeing other doctors for other ailments, but in general terms, there was not much disagreement as to the plaintiff's visits to the defendant and the reasons therefore.

50. A different position arose in respect of questioning of the plaintiff about matters directly relevant to the issues in these proceedings. Some of the plaintiff's denials of conversations with the defendant are not explicable unless the defendant was simply mis recording discussions or completing her notes based on an incorrect recollection. For example, on two occasions, the defendant records the plaintiff not wanting to find out results of a test. The plaintiff denies ever saying that to the defendant. One such consultation was on 20 May 2020, when the doctor discussed the CST results with the plaintiff and records discussing a HPV vaccination. The plaintiff denied any such discussion took place at all.

51. The effect of the cross-examination was to establish that, other than the questions relating to Pap smears or cervical screening tests or the plaintiff not following the defendant’s recommendations or not wanting to hear results, there was little dispute as to the general accuracy of the doctor’s notes.

52. The plaintiff has in her mind that the reason she did not undergo cervical screening over that five-year period was because of the advice she received from the defendant. However, the question remains whether that is because she did in fact receive advice that she did not need to undergo cervical screening or whether this is some form of reconstruction by the plaintiff, having regard to the quite significant trauma which she must be suffering and the possible searching for an explanation, considering, in her view, that her general practitioner should have done more.

The defendant's evidence

53. The defendant recalled treating the plaintiff at the Forum Medical Centre but she did not recall any particular consultations in any detail. Her evidence was very much based on her notes and her usual practice. She said that her usual practice was to record notes during the consultation or at the end of the consultation. It was not her practice to come back to her records and record further information at some later time. In a busy general practice this is hardly surprising.

54. As such, the defendant maintains that her notes accurately record what happened during the consultations, albeit they are in summary form. They do not purport to be a record of everything said or the precise words spoken.

55. The defendant says that, contrary to the plaintiff's assertion, she first saw the plaintiff on 22 January 2014. She saw the plaintiff because she was unwell, reference being to her thyroid complaint. She referred the plaintiff for some pathology.

56. The plaintiff again attended on 28 January 2014 and 19 March 2014 with reference to the swelling on the front of her neck. She had been referred to an endocrinologist, Dr Clifton-Bligh, who had previously seen her on 6 February 2014.

57. The first consultation of significance to the issues in these proceedings was on 29 April 2014. The plaintiff reported a range of symptoms. The reason for the visit is described as “abdominal bloating”. The plaintiff’s complaints are recorded under a heading “subjective” as follows:

“pt r/w ha sahd [sic] problem with bloating long time’

nil constipation or diarrhoea

wt stable’also [sic] anemic

has heavy periods last 7-10 days wa sin [sic] a relationship 6/12

just finished he rperiods [sic]”

58. There is also a heading “plan” with three items as follows:

“adv reg diet fluids

will chekc [sic] blood

pap smera [sic] discussed”

59. The defendant says that the words “Pap smear discussed” is a shorthand form of note. She says it means she followed usual practice when discussing Pap smears with a patient. In her statement, she described what happened at that consultation having regard to her usual practice as follows:

“29. When a patient first complains of heavy or unusual periods, I may:

(a) Undertake a screening for sexual health and potential pregnancy, which is done by asking about recent sexual activity.

(b) Ask the patient if the patient has had a pap smear recently.

30. I can see from the records that I have recorded that Athena told me that she had last been in a relationship 6 months previously and had just finished her period. It is likely that I asked Athena to tell me about her recent sexual activity for the purpose of screening for sexual health and to explore whether she might be or recently been pregnant.

31. I have a usual practice when I raise a pap smear with a patient:

(a) I will ask if [sic] when the patient last had a pap smear.

(b) if a patient says they don’t know or they have not, I advise them of the need for a pap smear by saying that they need to have a pap smear to screen for cervical cancer if they have ever been sexually active.

(c) I would advise them that they should have a pap smear if they have not had one in the last 2 years and say that this is to screen and detect any abnormal cells or changes of early cervical cancer. I would say that early detection of these changes are fully treatable.”

60. When the defendant's expert, Dr Dobler, was asked as to the appropriateness of the usual practice as described, he stated that it was “textbook”.

61. The next attendance of relevance was on 20 February 2015. The defendant's notes record the following:

“Subjective:

pt wanting to post[one [sic] her peirods [sic] by a week

same discussed

not sexually active

options

will get script primolut…”

62. The defendant also recalls that the plaintiff consulted her from time to time seeking medication to control when she had her period. This was one such occasion. The defendant says that she recorded “not sexually active” as a shorthand note to reflect that she told the plaintiff about the adverse effect of the medication on pregnancy.

63. In March 2015, the defendant provided a letter for Dr Clifton-Bligh regarding the plaintiff’s thyroid problems.

64. The plaintiff next attended on 1 April 2015. The defendant’s notes record the following:

“Subjective:

Pt r/w

Travelling again

Wanting not get her periods

Not sexually active

Pap UTD

d/w pt

did not like primolut

sample pack zoely given…”

65. I include the whole notes of that attendance because it is significant in terms of the outcome of these proceedings. According to the defendant, the reference 'Pap UTD' is a note recording that she asked the plaintiff when she last had a Pap smear and that she told the defendant she was up to date with her Pap smears.

66. The plaintiff further consulted the defendant for a range of ailments on four further occasions in 2015, being 1 August, 8 September, 10 September, and 12 December. During the consultation on 10 September 2015, the plaintiff again made reference to heavy periods, and that she was not keen for the oral contraceptive pill or other form of intervention.

67. On 6 January 2016, the plaintiff returned with similar symptoms/problems or complaints. On 20 February 2016, the plaintiff sought a referral to a gynaecologist suggesting that she was unable to see Dr Sue Valmadre to whom she had been referred on 6 January 2016.

68. The plaintiff saw the defendant on four further occasions in 2016 for a range of symptoms including her thyroid and women’s health issues. The question of Pap smears or cervical screening is not recorded in the notes. It is the defendant's evidence that it would have been recorded if discussed.

69. The plaintiff saw the defendant only once in 2017, being on 8 April 2017 for a thyroid problem and a further referral to Dr Clifton-Bligh. The plaintiff then saw the defendant on six occasions in the first eight months of 2018, again, mainly for women's health issues. There is no recording of any issue relating to Pap smears or cervical screening.

70. On 8 September 2018, the plaintiff attended again for women's health issues. The defendant's notes record the following: “never had pap – same discussed”, “adv to book for same”. The defendant says that during this consultation, the plaintiff told her she had never had a Pap smear. The defendant says that she counselled the plaintiff about the need for Pap smears and told her that, if she had ever been sexually active, she needed to have a cervical screening test to screen for the HPV virus, which can cause abnormal cervical cells and eventually cervical cancer. She says that she would have told her that early detection of these changes is fully treatable. She advised the plaintiff to book to have a screening test.

71. On 24 September 2018, the plaintiff underwent a pelvic ultrasound. On 29 September 2018, she returned again to see the defendant to discuss the results of the ultrasound and was given a referral for another ultrasound. The doctor's notes record a number of symptoms, results and examination and include a reference for gynaecological care.

72. On 21 October 2018, she returned seeking a prescription for the contraceptive pill on the basis she wanted to manage her periods. She said she was not in a relationship. The plaintiff further attended the doctor on 20 October, 30 November and 6 December 2018 for unrelated problems.

73. She then consulted the defendant five times in 2019, leading up to her consultation on 31 August 2019. The plaintiff attended for gynaecological problems and to discuss the results of her testing. According to the defendant, the issue of a Pap smear was raised and the defendant recorded in her notes “Pap? Last year – not sure will check reg same”. Reg is shorthand for regarding.

74. According to the defendant, she counselled the plaintiff about the need to have a Pap smear and asked when the last time the plaintiff had a Pap smear was. The plaintiff stated she believed it was the preceding year (2018) and told the defendant that she would check. The defendant recorded this in her notes.

75. The defendant arranged for the plaintiff to undergo an ultrasound for evaluation of a menorrhagia and provided a prescription for medication to her. On 27 September 2019, the plaintiff attended to discuss the results of the pelvic ultrasound. Dr Malhotra recommended a further ultrasound to confirm or exclude the diagnosis of a focal endometrial pathology consistent with possible endometrial polyp. On 13 November 2019, the plaintiff underwent a second ultrasound which revealed no obvious focal endometrial pathology. On 16 November 2019, the plaintiff attended to discuss the results of the second ultrasound. The doctor’s clinical notes recorded:

“pt r/w

Results of USG discussed

Copy given

CST discussed

Not in a relationship last 5 years

Adv to book for same

Reason for visit:

Results discussed”

76. The defendant says she discussed the discrepancies between the ultrasounds with the plaintiff and told the plaintiff that she needed to have a Pap smear and recommended a cervical screening test to look for any abnormal pathology and advised her to book one.

77. The defendant says that she told her the test screens for HPV virus, which is transmitted through sexual contact, that can cause abnormal cervical cells and eventually cervical cancer. The defendant says the plaintiff told her she had not been a relationship for five years and the defendant still advised her that she still needed to have a cervical screening test if she had ever been sexually active in the past, which she had. The defendant says she would have said that early detection of these changes is fully treatable.

78. The plaintiff returned to see the defendant on 13 December 2019. The defendant’s notes record the following:

“pt r/w for CST

never had one

SI about 8 years ago

nil sicne [sic]”

79. The defendant says she asked the plaintiff whether she had a cervical screening test. The plaintiff advised she had never had one. The plaintiff told her she had last had sexual intercourse eight years previously. The defendant says she told her it didn't matter; she still needed to have cervical screening testing even if she had only had sex once.

80. The defendant attempted to perform a cervical screening test during the consultation, but the test was not completed due to pain experienced by the plaintiff. The defendant arranged a referral to have a CST at another clinic.

81. The plaintiff then attended the defendant on a further three occasions in early 2020 for unrelated issues. On 8 May 2020, she had a telehealth consultation during the Covid-19 pandemic. The defendant says she asked whether the plaintiff had undergone the CST and the plaintiff said she had not had the CST. She again advised her to have one and the plaintiff said she would book to have one. The plaintiff underwent a CST on 14 May 2020. On 20 May 2020 she consulted the defendant, and the defendant advised her of the results.

82. The pathology results indicated HPV 16 had been detected and it was recommended she have a colposcopy. The defendant indicated that at this point she did not know whether it was cancer and she need needed to go back to Gynaecare, where she had the CST, to have an urgent colposcopy to investigate. The plaintiff asked the defendant how she would have potentially contracted HPV and the defendant informed her through sexual intercourse, she gave her a prescription.

83. On 22 May 2020, there was a further telehealth consultation, at which time the plaintiff advised the defendant that she did not want to go to a private clinic to have the colposcopy, she wanted to go through a public clinic. The doctor faxed a referral to the Gynaecology Clinic at Royal North Shore Hospital. She underwent the colposcopy on 9 June 2020. The plaintiff consulted the defendant on regular occasions throughout 2020. The plaintiff last consulted the defendant on 9 April 2021. She was not involved in her care at the time of the recurrence of her cancer in May 2023.

Cross-examination of the defendant

84. In cross-examination, the defendant accepted that:

1. it is important to keep accurate notes;

2. she made her notes contemporaneously with the consultation;

3. the notes included a summary of the important points raised between the patient and her during the consultation;

4. if a patient declined or refused treatment or any investigation offered, she would mention it in the notes;

5. that it would be generally good practice to review the early clinical notes before consultation, although that does not always occur;

6. continuity of care between patient and doctor is important, although, again, that does not always occur;

7. she had no independent recollection of the consultation on 29 April 2014 (or, in general, any other consultations but was entirely reliant on her notes);

8. she would have recorded in her notes if the plaintiff had said she had a Pap smear. She said that she raised the question of a Pap smear with the plaintiff, rather than vice versa. She did not recall why she had not recorded in her notes of 29 April 2014 whether or not the plaintiff had actually had a Pap smear. She thought that the plaintiff must have told her she had not had one and that is why she recorded “Pap smear discussed”;

9. the first time she recorded in the notes, “advised to book same” was on 8 September 2018. She did not know whether she offered to do the Pap smear at any earlier time, but she would generally say that she could do it at any time if a patient said that is when they wanted to do it;

10. she generally did about five or six Pap smears a month. She sometimes performed them instantaneously but some patients would book ahead. She felt that some patients had to be mentally prepared to do it and would choose a time that was convenient for them;

11. she acknowledged that screening programs are important and it would be a concern that a patient at the age of 32 had not had one, such that she definitely would have raised it with such a patient;

12. she would generally not assume that the patient was under the care of another general practitioner, unless the patient told her that they had done a test with somebody else;

13. she assumed that the plaintiff had seen somebody else for a Pap smear because the plaintiff told her in 2015 that her Pap smears were up-to-date and she knew that she had not performed it. She did not recall whether, thereafter, she assumed the plaintiff was under someone else's medical care except for the Pap smear. She would not know;

14. she rejected the idea that she would not have asked about whether the plaintiff had had a Pap smear (as she did in 2018) if she thought the plaintiff was under someone else's care. It was part of her normal practice to do so;

1. she accepted that she did not know when the plaintiff had the Pap smear prior to April 2015 as her notes do not record it;

2. she reiterated that as she had not given the Pap smear, she thought the plaintiff would be seeing someone else for that and the plaintiff would know when the next date was to have another Pap smear;

3. she accepted that reminders were important in the context of screening programs. If she had performed the Pap smear, she would have put a reminder in her system but, as she did not undertake the test, she did not put a reminder in;

4. she accepted that she did not know in 2014 or in February 2015 whether the plaintiff had had a Pap smear. She accepted that she did not tell her in February 2015 that she should have one. She did not take any steps to book her in for a Pap smear. Her practice was to remind people every now and again about the screening test but not every consultation as she believed that once patients are aware they make an informed decision when they want to have it;

5. she said she raised the Pap smear again on 1 April 2015, not vice versa. She raised it on this occasion because they were talking about gynaecological and sexual health. She raised the issue opportunistically when it was appropriate to do so. If the patient was consulting her about sexual health, she would raise it. She says she did check with patients from time to time whether they had had a Pap smear but she said that the medical practice that did the Pap smear had the responsibility of taking care of that set up;

6. she accepted there were plenty of opportunities for her to ask whether the plaintiff had a Pap smear having regard to the number of attendances on her. In particular she “could have”' raised it in 2016. There was no impediment to do so. She accepted that she could have raised it in April 2017. She acknowledged it had been two years since she had been informed that the plaintiff had a Pap smear. She acknowledged she could have raised it in February 2018 and at a number of other consultations in 2018;

7. she was taken to the September 2018 consultation. She agreed that she was concerned that the plaintiff told her she’d never had a Pap smear at that time. She disagreed that that would increase her risk, as the risk of contracting cancer would be the same whether she had or did not have a Pap smear;

8. she accepted that the plaintiff was under her care as of 8 September 2018 in respect of gynaecological or women's health issues and the issue of having a Pap smear. She said that is why she told the plaintiff to book in with her to do it. She acknowledged no such booking was made.

9. She rejected the proposition that the plaintiff might not have listened to what she was told in September 2018. She did not think the plaintiff might not have received the advice, particularly as she had given it a few times by the end of 2018, but she acknowledged that she could have raised it again and she could have given further advice and she could have taken further steps to ensure that the patient booked in for the Pap smear with her. She also acknowledged that she could have put the plaintiff on the practice reminder system for cervical screening. The only reason she did not do so was on the assumption that someone else was looking after her testing regime. She explained that she believed what her patients tell her;

10. she rejected the proposition that there was a protocol to remind patients to participate in a screening program, albeit once they had participated and were in the system they would receive a reminder;

11. she accepted that she could have said, “let's do it now”, and sometimes she did say that but it is still up to the patient;

12. she said that she would have recorded if the plaintiff had declined to test but she did not accept that the plaintiff had ever declined the test in the sense of saying she would not have it;

13. she accepted that she could have referred the plaintiff to a gynaecologist for the tests if that is what the patient wanted. She accepted that she could have done this if the patient declined the test but she did not accept that the patient had declined the test directly through her;

14. she rejected the propositions put to her (the plaintiff’s primary case) to the effect that she proceeded on the basis that if the patient was not sexually active she did not need to have cervical screening and that is what she actually told the plaintiff; and

15. she rejected the proposition that the first time she advised the plaintiff to book a screening test was 16 November 2019. She accepted that she had not checked with the staff as to whether the plaintiff had booked in for a routine screening check.

85. The defendant was a considered and credible witness. Despite the plaintiff’s primary allegations, it was not part of the plaintiff’s case that she had altered the medical records or even that she had mis recorded things.

86. There was little questioning on the plaintiff’s primary case. Most questions were directed to the alternative case. Much of the defendant’s evidence was based on her medical records rather than any precise recollection of what was said at any particular time. No reason was advanced as to why the defendant might not be telling the truth. Whilst Mr Toomey SC obtained many admissions as to what the defendant could or might have done and as to what the notes do not show, nothing emerged which might tend to suggest that the defendant’s notes were generally inaccurate or the that the defendant had failed to record visits from the plaintiff or failed to record discussions or consultations at different times.

Expert evidence

Development of the cancer

87. Prof Jonathan Carter on behalf of the plaintiff and Dr David Nuns on behalf of the defendant prepared reports and met in conclave and prepared a joint report dated 27 March 2024. It is not necessary to review their evidence in great detail. In terms of the development of the plaintiff’s cervical cancer their opinion is:

“The experts agree that the plaintiff was diagnosed with nose positive Stage IIB cervical cancer in June 2020 (FIGO 2009 staging system). Based on the experts’ experience, it is likely that a Stage IB cervical cancer was present for some 12 months prior to this; that is, from on or around June 2019. It is likely then that a Stage IA cervical cancer was present some 12 months prior to that date; that is, from on or around June 2018. It is thus likely that precancerous lesions, that is CIN or dysplasia, were present for some five to 10 years prior to the above date; that is, from sometime within the range from June 2008 to June 2013.”

88. They also agreed that had any precancerous changes been detected the outcome of the screening tests would have been an outpatient excision of the cervix and would have resulted in a high chance of cure for the precancerous change and cancer would have been avoided.

89. If a stage 1 cancer had been diagnosed around June 2018, a local cervical excisional simple hysterectomy could have been performed.

90. If early stage 1b cervical cancer had been diagnosed around June 2019, a radical hysterectomy could have been performed. It is again expected that the plaintiff would then not have the prognosis which she currently faces.

91. If the plaintiff’s disease had been diagnosed in a precancerous phase, the specific five-year survival rate (meaning long-term) would be 100 per cent.

92. Had it been diagnosed at stage 1, the survival rate would have been 95 per cent, and at stage 1b it would have been 75 to 80 per cent.

93. It is a sad fact that if appropriate cervical screening had taken place at any time up to June 2019, the plaintiff would have had good prospects of survival. It is just that the type and complexity of the treatment would have been different depending on when the cervical screening took place, and the precancerous changes or evidence of cancer was discovered.

Expert evidence on the practice of a general practitioner

94. It is not necessary to say anything further about the plaintiff's primary case, as a doctor who advises a patient that she does not need to have a Pap smear because she is not sexually active at the time, (as opposed to never having been sexually active) would plainly be negligent.

95. In those circumstances, the expert evidence, meaning both the reports and cross-examination were more directed at the alternative case, which really proceeds on the basis that the defendant said at least something about the need for Pap smears to the plaintiff in April 2014 and that something was said in April 2015, which led the defendant to believe that the plaintiff was “up to date”.

96. Even assuming those two matters, the plaintiff still maintains that the defendant did not do enough at those two consultations in terms of advising the plaintiff and satisfying herself that the plaintiff had had a Pap smear and when she had had it.

97. The plaintiff’s expert, Dr Lynch, offered opinions in his report dated 23 October 2023 based on assumptions. Some of those assumptions were not made out. Some of the opinions in his report were not in contest such as his opinion that during the period 2012 and 2019, the plaintiff should have been advised to have a Pap smear and offered a test. The defendant says she did so.

98. In oral evidence, Dr Lynch agreed that it was a standard part of a general practice in managing women's health to see that cervical screening is undertaken in a timely fashion and then to become aware of the results.

99. Dr Lynch emphasised that the patient's history determines whether she should be offered a Pap smear and whether the GP should ensure that it was current. He agreed it would be important to know when the last test was performed and what the result of the test might be. Further, once the first test was performed, the patient would be routinely put on a recall reminder system to have the test repeated at appropriate intervals. He would expect the doctor to enquire as to when the test had taken place and what the results were.

100. He said there are ways that a GP can ascertain whether a previous test had taken place and what the results were including the government registry and, if it was done privately, the clinic would have the result. He agreed that if the patient was unable to indicate when the last test was, it would be standard practice for general practitioners to consult the register. He agreed that when the doctor is unable to elicit all the appropriate information from the patient, the doctor ought to recommend that the patient undergo such a test.

101. In respect of the period 1 April 2015 to 8 September 2018, Dr Lynch agreed that, in the exercise of due care and skill, it was incumbent upon the defendant over that period to do something about seeing that the patient had testing performed. The Pap smear should be followed up and checked as part of a women's health assessment.

102. The patient should be reminded and recalled at appropriate times. He said it was not competent medical practice that the issue was not raised at any of the consultations between 1 April 2015 and 8 September 2018. He said testing should have been offered to the plaintiff no more than 2 years after the defendant was told she was up to date.

103. He then said that the consultation of 8 September 2018, where the plaintiff revealed that she had not had a Pap smear, was a red flag consultation. In the circumstances, the plaintiff was at risk and the defendant should have ensured as best as possible that the Pap smear was done promptly.

104. Ideally, the GP should ensure that the Pap smear is booked with them. Further, in circumstances in which the GP had not done a Pap smear but the plaintiff was being referred to a gynaecologist for the purposes of undergoing an ultrasound, a reasonably competent GP would have requested that the gynaecologist do the Pap smear. He did not think it was reasonable for the defendant not to include a reference to having a Pap smear in the referral to Omni Gynaecological Care in September 2018. Further, he said a GP must follow-up the plaintiff. He said that the failure to follow-up in seven consultations after 8 September 2018 did not accord with competent general practice. They were missed opportunities to ensure that the plaintiff had the Pap smear.

105. In cross-examination, Dr Lynch was taken to the standards for general practice. It was suggested to him that those standards require the practice, rather than the individual doctor, to have in place a system for following up in respect of preventative screening. He agreed the standards were directed towards the practice itself.

106. He also agreed that the obligation of the doctor was to give information or advice or to warn depending on what is being considered, but the patient had a right to determine for themselves what treatment they would have or what investigations they would have and whether to screen.

107. He agreed that the guidelines differentiated between diagnostic and screening. Screening might take place when there are no symptoms whereas diagnostic is the investigation of a condition that is present. Dr Lynch was cross-examined on the suggestion that the plaintiff had had a Pap smear with another doctor. He was questioned as to whether he considered the duty of a second doctor treating the patient for other issues was to supervise the first doctor. He maintained that the second doctor did have a duty to oversee what the first doctor was doing, although he said he really meant that there was an obligation to check that it had happened.

108. He further accepted that, in circumstances in which a doctor was told that the patient was up to date with her Pap smear, all the GP could do in those circumstances was to continue to remind them of the availability of preventative screening.

109. He accepted that, in circumstances where there were no symptoms needing to be investigated, it was a matter for the patient as to whether the test was carried out, provided they are given the information. All the doctor can really do is remind them of the availability of the screening and follow-up.

110. Importantly, the doctor tended to agree that the type of general advice that the defendant said she usually gave was appropriate. Further, he agreed that Pap smears or cervical screening tests could be done at a number of different places including at a general practice, specialist community health centre, woman's health centre, family planning clinic or sexual health clinic.

111. Dr Lynch also agreed that responsibility for having a test was a conjoint responsibility in the sense that, if the patient had been given the information, the patient was entitled to take time to make a decision themselves whether they wanted to have the test. He also accepted the obligation would be different if the patient, after being giving the relevant information, does not engage the doctor for the purposes of having a Pap smear.

112. He opined that, in some circumstances, the doctor might place the patient on a recall list even if the patient has indicated that the patient did not want to have the test, albeit he accepted that there is no guideline or standard that required them to do so.

113. Importantly, the doctor accepted (based on the assumptions put to him, which in my view are consistent with the facts of this matter) that the defendant did not have to do anything more in the period 2014 to 2015 than she did:

Q.  Why in April 2015; I understand your concern in 2018 when the patient tells the doctor she hasn't had one, but in 2015 she, I want you to assume, she conveys information to the patient (as said) from which the reasonable inferences can be drawn that she'd (1) had Pap smears, and (2) that they're current, so both as to actuality, and currency, do you understand?

A.  Okay, I accept that.

Q.  Now you'll recall that she's not being investigated for any symptoms; this is not diagnostic or case finding, even though I know you don't like that term, but the doctor taking an opportunity to raise with the patient preventive screening?

A.  Sure.

Q.  Now it's inherent, isn't it, in the context of what I've taken you to that the number of different places that a patient could have had that Pap smear performed, that the patient has seen someone else?

A.  Yes.

Q.  And I want you to assume the doctor has not been asked by the patient to either perform a Pap smear, or to take over management of the Pap smears?

A.  Okay.

Q.  Doctor, the GP doesn't have to do anything more in those circumstances, and I'm going to suggest to you the GP doesn't have to do anything more in those circumstances for the following reasons, and you can tell me if you agree or disagree.  One, the GP is following guidelines suggesting that they advise patients of the availability of preventive screening?

A.  Sure.

Q.  All GPs are required to follow those guidelines?

A.  Yeah.

Q.  Doesn't report any particular symptom that the doctor has investigated‑‑

A.  Yes, that's‑‑

Q.  ‑and the patient has not asked her about managing her preventive screening?

A.  Yes.

Q.  She's not engaged the doctor for that purpose?

A.  Yes.

Q.  In the circumstances where the GP tells the patient about the availability of preventative screening, and assuming she's been given the information, and the patient conveys to her information as to the actuality of having done it, and the currency of it, that particular GP has done nothing more than just tell the patient of the availability of preventive screening?

A.  Okay

Q.  Do you accept that?

A.  Yes, and the ‑ explain to them the timeframe between when the last one was done, and the next one should be done, yes.

Q.  Nothing else needs to be done?

A.  Okay, that'd be fine, yes.

Q.  Do you accept that?

A.  Yes.

Q.  Doesn't have to get a copy of the results, because someone else is managing it?

A.  Okay

Q.  Do you accept that?

A.  Yes.

114. Dr Lynch did not agree with the propositions put to him in respect of the period 1 April 2015 until 8 September 2018, maintaining his view that raising it once was not enough. He maintained that view in part because he said that the defendant was the holistic practitioner and was obliged to make sure that the patient was being properly managed, even by someone else. The doctor was obliged to keep the information current even in circumstances in which the GP might believe that some other doctor was responsible for dealing with that problem. He continued to maintain that, despite the fact that the patient had told the doctor that the Pap smear had been undertaken, the doctor would need to know that had happened, suggesting that if the GP was the last person in the line, it is that GP’s job irrespective of whether someone else has provided earlier treatment.

115. When put to him that Dr Dobler had a different view, he would not accept that the alternative view represented a reasonable body of opinion. He said it might be another body of opinion, but he did not think it was reasonable not to do the things that he suggested.

116. Dr Lynch also accepted that the Standards for General Practice, apply to the practice rather than the doctor (in terms of following up). He agreed that there were no other written guidelines or standards which supported his view about the need for a GP to find out whether a pap smear had been done and follow-up what some other GP might be doing.

117. He maintained that even if the patient had said that she had had a Pap smear 6 months ago with another doctor, the GP should follow that up and should tell the patient she was going to follow it up and then come back to her to talk about that. Again, Dr Lynch was not able to point to any standards or guidelines which mandates that which required such an approach.

118. He also accepted a reasonable number of general practices would have a different way of engaging in that process.

119. Dr Lynch also accepted that following up or checking with other doctors could not be done without the patient's consent.

120. Dr Lynch also agreed that he was wrong in suggesting in his report that it was necessary to have two normal cervical screening tests before the 5 year period applied.

242. The relevant chronology is as follows:

1. April 2014, the defendant informs the plaintiff about cervical screening and the need for her to have a Pap smear.

2. April 2015, the plaintiff wrongly informs the defendant that she is up-to-date, when the subject of the Pap smear is again raised.

3. August 2018, when she finds out the plaintiff has not in fact had a Pap smear the defendant counselled her about having one and advises her to book in for one. The plaintiff does not do so. Nor does the plaintiff have a Pap smear anywhere else, despite being informed that that the detection of precancerous changes can lead to treatment which will prevent the development of cancer.

4. August 2019, the defendant again asked the plaintiff whether she has had a Pap smear. The plaintiff responds (wrongly) to the effect that she thought she had one, but she would check. The plaintiff would have known whether she had one. She provided incorrect information to the defendant for her own reasons.

5. November 2019, this was again raised by the defendant at which time the plaintiff said that she had not had one and the defendant advised her to book in for one. She did not.

6. December 2019, the plaintiff again advised that she had not had a Pap smear. The defendant attempted to perform one but the plaintiff exhibited pain. The defendant arranged for the plaintiff to have a Pap smear at another clinic. The plaintiff did not attend on that other clinic.

249. It follows that:

1. On every occasion that the defendant recommended or gave advice about a Pap smear between 2014 and 2019 the plaintiff did not follow that advice.

2. On two occasions the plaintiff provided incorrect information to the defendant about whether she had had a Pap smear.

3. On one occasion when the defendant attempted to perform a screening test the plaintiff complained of pain.

4. On the occasion that the defendant referred the plaintiff to another clinic for CST the plaintiff did not attend.

250. In all the circumstances, the evidence does not permit any inference being drawn that, if the defendant had raised the issue a few months earlier in 2018 or a few months earlier in 2019, the plaintiff would have had the Pap smear or CST. There is no basis on which I could find that, if the defendant had raised the issue at some different time, the plaintiff would have followed the advice, when she did not do so at any other causally relevant time that it was raised.

251. The course of communications with the defendant over the period 2014 to 2019 suggests a disinclination on the plaintiff’s part to have a Pap smear. Again, the plaintiff is not a person who would not have understood the advice or who had no understanding of why such screening could be important. She knew it was important.

252. I am only able to conclude that, for reasons personal to her, she did not want to undergo the screening or decided not to undergo the screening. Even if the defendant had reminded the plaintiff more promptly in 2018 or 2019 that she should be having cervical screening, the plaintiff has not established that the outcome would have been different. The plaintiff has not established that but for any asserted failure, she would have had a pap smear or CST in time for the cancer to be treated.

253. As such, the plaintiff is not entitled to succeed.

Damages

254. I will assess damages briefly.

255. If the plaintiff had succeeded, she would have been entitled to substantial damages. Some heads of damage were agreed. There are two major components in dispute relating to non-economic loss and economic loss.

256. There could not be any doubt that the consequences of the alleged negligence have been and will continue to be traumatic.

257. There is a dispute between the parties as to the amount the plaintiff should have received on account of non-economic loss (assessed as a percentage of the most extreme case in accordance with the CLA). The plaintiff seeks 90-100%. The defendant disagrees, suggesting a figure of 55% (see O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127 at [162]). Whilst the trauma is extreme and it may be difficult to contemplate any worse an outcome said to be arising from the alleged failures, sadly the period of the trauma is limited. In my view, the plaintiff is not entitled to non-economic loss at the level sought.

258. I would make an assessment of 70% in the most extreme case.

259. In terms of economic loss, the dispute between the parties is limited to the amount of income that the plaintiff was receiving prior to becoming unfit for work because of a cancer and what she would have earned in the future, that is for the lost years.

260. The approach to assessing damages in a case such as this is not in dispute. The plaintiff is entitled to damages equivalent to the income she would have received if she had not developed a terminal illness. This is to be calculated with reference to her likely net earnings, with an appropriate allowance for the contingencies and with a deduction representing the amount that she would have spent on maintaining herself if she had survived (see Skelton v Collins (1966) 115 CLR 94 at 121 per Taylor J).

261. In her last period of work the plaintiff was working as a full-time project manager for the NSW Department of Education earning a base rate of $1100 gross per day (exclusive of superannuation) through a recruitment agency. The plaintiff’s pay slips indicate net earnings of $3478 per week. The plaintiff accepts that this was higher than she had ever earned, and claims aims a lesser sum being $2750 per week. The plaintiff claims that there should be a weekly deduction on account of maintenance expenses that she would have incurred of $940.

262. The defendant assesses past economic loss from 17 November 2022 to 2 April 2024 at $1830 net per week with a deduction for maintenance of $1000.

263. As already indicated the plaintiff had a bright future ahead of her. Earnings were increasing over time. The averaging process undertaken by the defendant reflects differing income over differing periods and also reflects the fact that there had been periods where she was not working.

264. As is well-known the past is only a guide (Husher v Husher (1999) CLR 138). If not for her illness, the plaintiff would be moving into her peak earning capacity period. Her skills were sought after.

265. There was no cross-examination of the plaintiff on these damages issues. In my view, her earnings in the immediate period before she stopped work are reflective of what she might have earned in the future. The plaintiff has discounted that figure somewhat, which in my view represents a reasonable approach having regard to the time she stopped work and her lesser earnings in the period immediately before that time.

266. I thus would have assessed damages in the sum claimed by the plaintiff to the age of 67. I would have allowed a 15% reduction on account of vicissitudes. There is nothing in the plaintiff’s history or background which would suggest that a greater discount should be allowed.

267. Again, there was really no evidence on likely maintenance expenses. The difference between the parties is small. Common experience suggests that the higher the earnings, the greater the amount spent by the income earner. I would have assessed the weekly maintenance deduction as $1000.

268. I understand that all of the other heads of damages sought are agreed.

269. It is not necessary that I prepare a schedule of damages as the plaintiff has not succeeded. I made findings on what the plaintiff would have recovered should she have succeeded so as to enable the parties to calculate damages, if it be necessary to do so arising from any appeal.

270. I understand that all amounts are agreed, such that should it be necessary to do so, the parties can agree on the total amount.

Orders

271. I make the following orders.

1. Judgment for the defendant.

2. The plaintiff is to pay the defendant’s costs.

3. Grant liberty to apply should either party seek a variation of the costs order.

Decision last updated: 15 May 2024