Le Brun v Joseph [No 2] - [2010] WASCA 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LE BRUN -v- JOSEPH [No 2] [2010] WASCA 52

CORAM: McLURE P
PULLIN JA
NEWNES JA

HEARD: 18 & 19 AUGUST 2009

DELIVERED : 24 MARCH 2010

FILE NO/S: CACV 29 of 2007

BETWEEN: GARRY JAMES LE BRUN by his next friend ELAINE LE BRUN
Appellant
AND
NEVILLE PETER JOSEPH
First Respondent
JOANNE MARIE BESTED
Second Respondent
RUTH MARION KEARON
Third Respondent
MINISTER FOR HEALTH
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MCCANN DCJ
Citation  :LE BRUN (AN INCAPABLE PERSON SUING BY HIS NEXT FRIEND ELAINE LE BRUN) -v- JOSEPH & ORS [2006] WADC 200
File No  :CIV 2643 of 2003

Catchwords:

Negligence - Claim of medical negligence - Appellant suffering from severe headaches - Subsequently suffered severe injury from rupture of undiagnosed arteriovenous malformation (AVM) - Whether headaches caused by AVM - Whether respondents negligent in not referring appellant for CT scan of brain or to neurologist to investigate cause of headaches - Whether failure to do so caused or contributed to injuries suffered by appellant from rupture of AVM - Whether trial judge erred in finding that if AVM diagnosed earlier form of treatment appellant would have elected would not have prevented AVM rupturing when it did - Relevant principles of causation - Whether the standard of care of inexperienced doctor is the same as experienced doctor - Whether new allegation of negligence open on appeal

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr R I Viner QC & Mr G Droppert
First Respondent           :     Mr P D Quinlan
Second Respondent       :     Mr P D Quinlan
Third Respondent         :     Mr G R Hancy
Fourth Respondent        :     Mr G R Hancy

Solicitors:

Appellant:     Friedman Lurie Singh & D'Angelo
First Respondent           :     Pynt & Partners
Second Respondent       :     Pynt & Partners
Third Respondent         :     Jackson McDonald
Fourth Respondent        :     Jackson McDonald

Case(s) referred to in judgment(s):

Bennett v Minister for Community Welfare (1992) 176 CLR 408
Chappel v Hart (1998) 195 CLR 232
Devries v Australian National Railways Commission (1993) 177 CLR 472
Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510
Jones v Dunkel (1959) 101 CLR 298
Le Brun v Joseph [2006] WADC 200
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naxakis v Western General Hospital (1999) 197 CLR 269
Rosenberg v Percival (2001) 205 CLR 434
The Board of Management of Royal Perth Hospital v Frost (Unreported, WASCA, Library No 970069, 26 February 1997)
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598
Wilsher v Essex Area Health Authority [1987] QB 730

McLURE P: I have had the advantage of reading the reasons for judgment of Newnes JA with which I agree. I note for the record that the court below and this court were not called upon to determine whether, having regard to the trial judge's finding of a lack of any connection between Mr Le Brun's AVM and his history of headaches, there was no legal causation even if the 'but for' test had been satisfied: see Chappel v Hart (1998) 195 CLR 232 [66]; Rosenberg v Percival (2001) 205 CLR 434 [83].
PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of McCann DCJ in the District Court dismissing the claim by the appellant (Mr Le Brun) against each of the respondents for damages for personal injury: Le Brun v Joseph [2006] WADC 200.
Mr Le Brun's claim arises from injuries he suffered when an arteriovenous malformation (AVM) located in the right temporal lobe of his brain ruptured on 24 July 1999. The rupture of the AVM caused Mr Le Brun to be severely disabled. Whilst he has since made a partial recovery, he has been left with a number of serious residual disabilities.
The first respondent (Dr Joseph) is a general practitioner and the sole principal of the Boulder Medical Clinic in Boulder. The second respondent (Dr Bested) worked as a locum medical practitioner at the Boulder Medical Clinic at the relevant time. The third respondent (Dr Kearon) worked as a resident medical officer in the emergency department of the Kalgoorlie Regional Hospital at the relevant time, and the fourth respondent (the Minister) was responsible for the management of the hospital.
In the action, Mr Le Brun alleged that each of the respondents was negligent in failing to refer him for a CT scan of the brain and/or review by a neurologist or neurosurgeon when he consulted them complaining of severe headaches. He says that if he had been referred the AVM would have been diagnosed and successfully treated before it ruptured.
The primary judge found that Mr Le Brun had established that Dr Joseph and the Minister breached their duty of care, but found that their negligence did not cause Mr Le Brun's injuries because the AVM would have ruptured on 24 July 1999 even if they had not been negligent. His Honour found that Mr Le Brun had failed to prove that Dr Bested and Dr Kearon were negligent. He therefore dismissed Mr Le Brun's claim.

Mr Le Brun appeals against the findings that the negligence of Dr Joseph and the Minister were not the cause of his injury and the trial judge's finding that Dr Bested and Dr Kearon were not negligent.
The Minister has filed a cross‑appeal of a conditional nature; that is, if Mr Le Brun is successful in his appeal on causation, then the Minister appeals against the finding of the primary judge that the Minister breached the duty of care it owed to Mr Le Brun.

The background

Mr Le Brun had a history of severe headaches beginning in or about mid‑1998. The headaches occurred once every two to three months. On 9 December 1998, Mr Le Brun attended a locum practitioner at the Boulder Medical Clinic, Dr Seidl, complaining of a sore throat and a migraine three days previously. Dr Seidl arranged for some pathology tests to be carried out and suggested that Mr Le Brun return to be reviewed in a week's time.
Mr Le Brun in fact returned the following day, 10 December, complaining of a headache the previous night. Dr Seidl considered two differential diagnoses, namely sinus headaches or tension headaches. Dr Seidl found that Mr Le Brun was tender of the maxillary sinuses. He referred Mr Le Brun for an x‑ray of his sinuses and this was performed at the Kalgoorlie/Boulder Radiology Clinic by Dr Pascoe on 10 December 1998. In his report on the findings of the x‑ray, Dr Pascoe concluded that Mr Le Brun was suffering from 'acute left maxillary sinusitis' and 'chronic frontal sinusitis'.
The x‑ray report was subsequently reviewed by Dr Joseph and, on 13 January 1999, the practice manager at the Boulder Medical Clinic telephoned Mr Le Brun and left a message for him to make an appointment to see Dr Joseph to discuss the x‑ray report.
Mr Le Brun attended on Dr Joseph on 18 January 1999. Dr Joseph referred Mr Le Brun for a CT scan of his para‑nasal sinuses. The scan was carried out on 28 January 1999 by Dr Pascoe who reported on it on 29 January 1999. Dr Pascoe concluded that the scan disclosed mild chronic right maxillary sinusitis and mild chronic inflammatory changes to left turbinates. He also reported that there was a chronic retention cyst, 8 mm in diameter, in the right maxillary antrum anteriorly. Dr Pascoe's report on the CT scan was reviewed by Dr Joseph and arrangements were made for Mr Le Brun to see Dr Joseph to discuss the results. That appointment took place on 8 February 1999. At that appointment Dr Joseph noted that Mr Le Brun's symptoms had improved.
On 15 March 1999, Mr Le Brun consulted Dr Joseph complaining of a severe temporal headache and problems with his neck. He was referred for physiotherapy treatment for neck strain associated with a football injury.
The following day Mr Le Brun attended the Barry Larkan Physiotherapy Clinic where a physiotherapist, Ms Kirrily Thomas, took a history of severe headaches in the right side of his head. Ms Thomas considered that the headaches were a temporal headache, not a frontal or occipital headache. Ms Thomas found no signs of pins and needles or numbness but Mr Le Brun described 'a strong pulling sensation from the back of his head down to his mid‑back or below the scapular region'. Mr Le Brun told Ms Thomas that he had first had headaches in October 1998. He had throbbing head pressure for a period of two months which disappeared for a month but had since returned. Ms Thomas found that Mr Le Brun's headache increased if he flexed his head from 3/4 of its normal range from chin to chest. He had tenderness over the bilateral facet joints from the upper cervical down to the upper thoracic spine and specifically on three different levels. He was tender over the C3 level of the cervical spine. Ms Thomas considered the headaches could have emanated from the C3 level and carried out physiotherapy treatment at that level.
Mr Le Brun told Ms Thomas that investigation had revealed a cyst in the right sinus but Mr Le Brun was vague as to whether he had had an x‑ray or a CT scan, or both. He said it was a scan of his head.
Mr Le Brun returned for further physiotherapy treatment the next day and was seen by the proprietor of the physiotherapy clinic, Mr Larkan. Mr Le Brun told Mr Larkan that he felt better. He said he had had a headache at noon that day but it was not severe. Both of the headaches of which Mr Le Brun complained were occipital in nature (that is, located at the back of the head). Mr Le Brun returned for treatment the following day, 18 March, and saw Ms Thomas. He told her that he felt much better.
Mr Le Brun had an appointment at the Boulder Medical Clinic for 19 March 1999 but he did not attend that appointment.
Mr Le Brun attended on Ms Thomas for further physiotherapy on 20 March 1999. At that appointment he told Ms Thomas that he felt 'one hundred per cent better' and was, in effect, pain free. After some treatment Ms Thomas discharged Mr Le Brun with advice on stretches that he could perform at home. Ms Thomas wrote to Dr Joseph on 20 March 1999 (exhibit 1.38) reporting the history of intense temporal headaches and some cervical pain, and informing him that, following treatment, Mr Le Brun was 'now pain free with no headaches'.
Mr Le Brun attended on Ms Thomas on 30 March 1999 without an appointment. He complained that he had experienced upper thoracic pain and headache on two occasions. Ms Thomas treated him and asked him to return for a review in two days.
It turned out that Mr Le Brun returned the next day and saw Mr Larkan. Mr Le Brun complained of an occipital headache the previous night. Mr Larkan considered that Mr Le Brun's problem was primarily his upper cervical spine rather than his thoracic spine. He provided treatment.
Mr Le Brun consulted a chiropractor, Mr Wells, on 19 April 1999. He gave Mr Wells a history of headaches for the previous six months which had been getting worse in the right temple during the preceding six weeks. Mr Wells found muscular tightness and joint restriction at the C1 and C6 levels of Mr Le Brun's spine. He treated Mr Le Brun with some chiropractic adjustments.
Mr Wells saw Mr Le Brun again two days later, on 21 April 1999. It appears that Mr Le Brun's condition was unchanged. Mr Wells found some restriction and muscle tightness in the upper and lower cervical levels of Mr Le Brun's spine and in the thoracic spine. He found Mr Le Brun was 'tense across his shoulders'. He again carried out some chiropractic adjustments.
Mr Le Brun consulted Mr Wells again on 28 April 1999. He told Mr Wells that the headaches were not getting any worse and were not excruciating.
Two days later, on 30 April 1999, Mr Le Brun consulted Dr Joseph in relation to his headaches. Dr Joseph referred Mr Le Brun to an ear, nose and throat (ENT) specialist, Dr Harlock.
Mr Le Brun attended an appointment with Dr Harlock on 13 May 1999. Mr Le Brun took with him to the appointment the CT scan of his sinuses which had been carried out in January 1999. Dr Harlock found that Mr Le Brun had previous symptoms of sinusitis but that they were not dominant symptoms on 13 May. The primary presenting complaint was of temporal pain (ie headache) with bilateral neck and shoulder pain. In his report to Dr Joseph of 13 May 1999, Dr Harlock said that Mr Le Brun's 'headaches and temporal discomfort are unlikely to be associated with sinusitis'. He continued:
[Mr Le Brun] is complaining of muscular pain in his neck and shoulders, the temporal discomfort might be related here, and I wonder if he's getting a trigger for a migraine type syndrome even though there is a negative family history.
Dr Harlock informed Mr Le Brun of his opinion that the headaches were not caused by sinusitis and told him to see Dr Joseph if he had any further problems. In evidence at the trial, Dr Harlock said that at the time he regarded Mr Le Brun as having a treatable disorder such as migraine or a vascular syndrome, and did not have any concern about anything 'sinister or major going on'. He said that patients with acute or chronic sinusitis can present with headache as a persistent symptom, and that a sinusitis headache has many characteristics that mimic the symptoms of a migraine headache.
There was then a hiatus of approximately two months between mid‑May 1999 and early July 1999, during which Mr Le Brun did not consult any health professional.
The next occasion on which Mr Le Brun sought medical assistance was on 5 July 1999 when he attended Mr Wells, the chiropractor, complaining of right temporal pain, as he had complained of at the 19 April appointment. Mr Wells asked Mr Le Brun if he had had a 'CAT scan'. Mr Le Brun told him that he had and that 'the doctor said it was okay'. Mr Wells found Mr Le Brun to be quite stiff in 'all the muscles' including in his lower back as well as other areas of the spine. He administered chiropractic adjustments of the cervical, thoracic and lumbar levels of the spine and asked Mr Le Brun to return for further treatment in one week's time.
In fact, Mr Le Brun returned two days later, on 7 July 1999, with the same symptoms, which Mr Wells described as 'just this wide temporal headache'. He administered chiropractic adjustments again.
Two days later, on 9 July 1999, Mr Le Brun again attended Mr Wells complaining that his headaches were worse. Mr Wells asked Mr Le Brun to see him on Monday, 12 July 1999. Mr Le Brun in fact returned the following day, Saturday 10 July. Mr Wells recorded that the pain in Mr Le Brun's temple had decreased but the occipital pain had increased. Mr Wells gave evidence that he told Mr Le Brun that there was something seriously wrong as the symptoms were getting worse and were not responding to treatment. He recommended that Mr Le Brun see his doctor.
The following day, 11 July 1999, Mr Le Brun attended the emergency department of the Kalgoorlie Regional Hospital at 1.22 pm. Mr Le Brun gave the triage nurse a history of temporal headaches to the back of his head on and off for 12 months. He told her that he had been seen by his GP and had had a CT scan which revealed no abnormality. He said he had been suffering from a severe temporal headache for one week and had ringing in his ears and blurred vision. There was one episode of vomiting that morning.
Mr Le Brun was seen in the emergency department that day by Dr Kearon. Dr Kearon's notes record that Mr Le Brun gave a history of one year of severe headaches, the last one occurring approximately two months previously, the headaches starting on the right temporal area and radiating to the neck. Mr Le Brun told Dr Kearon that he had had the current headache for one week and it was the same pattern as the previous headaches. He was unable to work. He told Dr Kearon that he had had manipulation of the cervical and thoracic spine by a chiropractor for the past week and had some lower back pain. He had vomited in the morning. He said he had seen an ENT specialist and a CT scan had revealed no abnormality. He said that he had had four sessions of physiotherapy.
Dr Kearon recorded a decreased range of motion of the cervical spine and no meningism. There were no neurological symptoms. Dr Kearon found Mr Le Brun to be tender over the temples and para‑spinal region with spasms. Mr Le Brun was prescribed three medications, namely Ketorolac, Maxalon and Chlorpromazine. The first was for pain relief and the second to settle nausea. The Chlorpromazine was not administered.
Later that day Dr Kearon reviewed Mr Le Brun, who reported that his symptoms had been relieved. Dr Kearon diagnosed severe headache, exacerbated by cervical spine manipulation, and prescribed analgesia. She told Mr Le Brun to avoid the chiropractor. Mr Le Brun was subsequently discharged from the hospital. Dr Kearon told him to return to the hospital or see his GP if he did not improve or became worse.
Mr Le Brun saw Mr Larkan, the physiotherapist, the following day, 12 July 1999. Mr Le Brun told Mr Larkan that he had seen a chiropractor four times the previous week and the chiropractor had manipulated his thoracic spine forcefully, resulting in increased occipital and frontal headaches. Mr Le Brun reported quite severe occipital and frontal headaches. On examination, Mr Larkan found Mr Le Brun had a lot of muscle spasm which was restricting forward flexion of the neck. He treated Mr Le Brun's atlanto‑occipital and facet joints and the thoracic and cervical spine.
Mr Le Brun saw Mr Larkan again the next day, 13 July. Mr Le Brun said the frontal headache had decreased but the occipital pain remained the same. After treatment on 13 July, Mr Le Brun said he felt sick. Mr Larkan gave evidence that he was concerned by this and the fact the headaches were worse with the application of heat, which he said was a very unusual sign. Mr Larkan said he was concerned there may be a migrainous component to the headaches, besides cervical problems, and suggested Mr Le Brun see his GP.
Mr Le Brun in fact consulted Dr Joseph later that morning. Mr Le Brun reported severe neck pains following manipulation by the chiropractor. Dr Joseph referred Mr Le Brun for a CT scan of his cervical spine.
The following day Mr Le Brun saw Mr Larkan again. He told Mr Larkan he felt a lot better the previous night and that morning, and said his GP had referred him for a CT scan.
A CT scan of Mr Le Brun's cervical spine was performed on 15 July 1999. The radiology report by Dr Pascoe reported that no abnormalities were identified and that the scan was a 'negative study'.
Mr Le Brun cancelled his appointment to see Dr Joseph on 16 July 1999.
On 19 July 1999, Mr Le Brun consulted Mr Larkan. Mr Le Brun took with him the report of the CT scan of his cervical spine. He told Mr Larkan that he was a lot better.
Later that day, Mr Le Brun saw Dr Bested by appointment at the Boulder Medical Clinic. Mr Le Brun saw Dr Bested in lieu of Dr Joseph to discuss the results of the CT scan. He did not consult Dr Bested in relation to any then existing headache. Mr Le Brun gave Dr Bested a history of headaches for 18 months and said that a CT scan had shown his sinuses and head were normal. He said he gained temporary relief with physiotherapy but his symptoms had been made worse with chiropractic treatment. He had associated blurred vision and tinnitus every few months. He said the headaches began in the right temporal, throbbing with his pulse, and moving to the left temporal and occipital. It was often brought on by arm movements. Dr Bested telephoned Kalgoorlie‑Boulder Radiology Clinic and asked for the results of a CT head scan. She was told it was 'a negative study.' Dr Bested assessed migraine with a cervical and vascular component. Dr Bested prescribed Diazepam, Cafergot and Panadeine Forte.

Mr Le Brun had an appointment to see Mr Larkan on 20 July 1999 but did not keep it.
On 24 July 1999, Mr Le Brun experienced a sudden onset of throbbing right‑sided headache and blurred vision and shortly afterwards collapsed at home, complaining he could not move the left side of his body including his upper or lower limbs. He appeared to be drowsy and disorientated. He was admitted to the emergency department of the Kalgoorlie Regional Hospital at approximately 8.00 am. A physician, Dr Brand, was called in to review Mr Le Brun. Dr Brand found him to be drowsy with slurred speech associated with left‑sided hemiplegia, but Dr Brand was able to take a history from him. Dr Brand's initial assessment was that Mr Le Brun had suffered a migraine attack, complicated by hemiplegia. When Mr Le Brun did not improve Dr Brand referred him for a CT scan of the brain. The scan was performed by Dr Pascoe later on the morning of 24 July. Dr Pascoe found that there was a large right temporal lobe haematoma with complications. In the light of that finding, Dr Brand arranged for Mr Le Brun to be transferred to Perth by the Royal Flying Doctor Service. In his referral letter, Dr Brand noted that Mr Le Brun's history was vague. He said that Mr Le Brun had apparently seen a specialist in Perth recently with a diagnosis of migraine and apparently had had a CT scan which was normal.
Mr Le Brun arrived at Sir Charles Gairdner Hospital Emergency Department just after 6.30 pm. That evening he underwent a cerebral angiogram which found an AVM malformation with multiple small branches arising from the distal right internal carotid, small lenticulo‑striate branches feeding a nidus which was approximately 1.5 cm in diameter with early venous drainage which drained to the straight sinus. The AVM was located in the right temporal lobe of the brain in an area known as the basal ganglia. The cerebral angiogram confirmed that a haemorrhage had been caused by the rupture of the AVM. A left frontal external ventricular drain was inserted in Mr Le Brun's brain to relieve the pressure of the haematoma caused by the haemorrhage.
However, Mr Le Brun's condition deteriorated and, on 29 July 1999, he underwent a right parieto‑temporal craniotomy and evacuation of the haematoma, performed by Professor Knuckey. During the procedure the haematoma, and the AVM into which blood was feeding, were removed without causing any further neurological deficit. It turned out that the haematoma had cleared a path through what would otherwise have been healthy eloquent brain matter and Professor Knuckey was able to stop any bleeding from blood vessels (including lenticulostriate vessels) associated with the AVM.
Mr Le Brun underwent a long and arduous recovery involving a number of complications including infections, respiratory failure, collapsed lungs and post‑traumatic amnesia. He was transferred from Sir Charles Gairdner Hospital to the Royal Perth Rehabilitation Hospital on 30 August 1999. He remained there until 20 January 2000 when he was discharged into the care of his parents in Perth.
On 28 March 2000, Mr Le Brun underwent an MRI and angiogram which confirmed that during the evacuation of Mr Le Brun's haematoma on 29 July 1999 his AVM, into which blood was feeding, had been completely removed.

Mr Le Brun's pleaded case

Mr Le Brun pleaded that the injuries he suffered as a consequence of the rupture of the AVM were caused by the negligence of the respondents. It was not in issue that each of the respondents owed Mr Le Brun a duty to exercise reasonable skill and care in the provision of treatment and advice to him. The alleged breaches of that duty in respect of each of the respondents were as follows.

The case against Dr Joseph

Mr Le Brun alleged that Dr Joseph:
(a)After receipt of the 20 March 1999 letter, failed to accurately record [Mr Le Brun's] complaint of intense temporal headache, in the Boulder Medical Clinic notes.
(b)Failed to take any action subsequent to receipt of the 13 May 1999 letter and:
(i)Advise [Mr Le Brun] his headaches and temporal discomfort were unlikely to be associated with sinusitis.
(ii)Advise [Mr Le Brun] he should undergo cranial CT scan and review by a neurosurgeon, neurologist, or both.
(iii)Telephone [Mr Le Brun] and ask him to attend the Boulder Medical Clinic for review.
(iv)Make an accurate record in the Boulder Medical Clinic notes of the advice provided by Dr Harlock that:
(1)[Mr Le Brun's] headaches and temporal discomfort were unlikely to be associated with sinusitis.
(2)The CT scan [Mr Le Brun] underwent in January 1999 was of the sinuses only.
(c)On 13 July 1999 failed to take an adequate history from [Mr Le Brun], which history would have elicited at least the following facts:
(i)A one year history of severe temporal headache.
(ii)A recent attendance at the Emergency Department for about 4 hours with [a] history of [a] headache that had lasted for one week, and which started in the right temporal area and radiated to the neck and was of sufficient severity such that [Mr Le Brun] was unable to work.
(d)On 13 July 1999 failed to refer [Mr Le Brun] for cranial CT scan, review by a neurosurgeon, neurologist, or both.
(e)Upon receipt of the 15 July 1999 CT scan report, failed to organise cranial CT scan and/or review by a neurosurgeon, neurologist, or both.

The case against Dr Bested

Mr Le Brun alleged that Dr Bested:
(a)Failed to review or to adequately review the Boulder Medical Clinic patient file relating to [Mr Le Brun], review of which would have indicated:
(i)[Mr Le Brun] had never undergone cranial CT scan.
(ii)A physiotherapist had reported that [Mr Le Brun] was complaining of intense temporal headaches in the 20 March 1999 letter.
(iii)An otolaryngologist had reported that [Mr Le Brun's] headaches and temporal discomfort were unlikely to be associated with sinusitis in the 13 May 1999 letter.
(iv)Intracranial pathology could not be excluded as a potential cause of the symptoms with which [Mr Le Brun] presented on 19 July 1999.
(b)Failed to take an adequate history from [Mr Le Brun] which would have elicited at least the following facts:
(i)A one year history of severe temporal headache.
(ii)A recent attendance at the Emergency Department for about 4 hours with [a] history of [a] headache that had lasted for one week, and which started in the right temporal area and radiated to the neck and was of sufficient severity such that [Mr Le Brun] was unable to work.
(c)Failed to refer [Mr Le Brun] for CT scan, or review by a neurosurgeon, neurologist, or both.

The case against Dr Kearon

Mr Le Brun alleged that Dr Kearon:
(a)Failed to act or to adequately act upon the history and examination findings [noted by her at the attendance of Mr Le Brun at the Emergency Department of the Kalgoorlie Regional Hospital on 11 July 1999].
(b)Failed to organise cerebral CT scan or cerebral MRI scan or assessment by a neurosurgeon, neurologist, or both.
(c)Failed to report the fact of [Mr Le Brun's] presentation to the Emergency Department on 11 July 1999 to the Boulder Medical Clinic shortly after that presentation by letter or telephone call.
(d)Formed the erroneous conclusion that [Mr Le Brun] had undergone a cerebral CT scan at some time prior to 11 July 1999, when no such history was given to [Dr Kearon] by [Mr Le Brun], and review of the Kalgoorlie Regional Hospital file relating to [Mr Le Brun] would have indicated [Mr Le Brun] underwent CT scan only of his paranasal sinuses on 28 January 1999.

The case against the Minister for Health

Mr Le Brun alleged that the Minister, as the entity responsible for the management of the Kalgoorlie Regional Hospital and the provision of nursing and medical staff, owed to Mr Le Brun a duty to exercise reasonable care in the provision of advice and treatment. In the alternative it was pleaded that Dr Kearon was an employee or agent of the Minister and the Minister was vicariously liable for the negligence of Dr Kearon. Mr Le Brun pleaded that the Minister was in breach of the duty of care as follows:
(a)Failed to have any or any adequate system in place on 11 July 1999 such that [Dr Joseph] or [Dr Bested] would be advised of [Mr Le Brun's] presentation to the Hospital on 11 July 1999 and [on the history and examination findings at his attendance].
(b)Failed to have any or any adequate system in place at the Hospital in respect of investigation of patients presenting with severe headache.
(c)Failed to have any or any adequate system in place at the Hospital providing for provision of discharge information to patients presenting with severe headache in respect of further medical or specialist review or recommendations as to radiological examination.
(d)Failed to staff the Emergency Department on 11 July 1999 with nursing and medical staff with sufficient qualifications and experience to assess, treat and advise patients presenting to the Hospital with severe headache.
(e)Failed to have any or any adequate system in place on 11 July 1999 in respect of patients presenting with severe temporal headaches and with the history and symptoms [noted upon Mr Le Brun's attendance at the Emergency Department] which would have required cranial CT scan, review by a neurosurgeon or neurologist, or both, or at least admission to the hospital for observation.
(f)Failed to have any or any adequate system in place on 11 July 1999 in respect of review of patient presentations to the Emergency Department by suitably qualified medical practitioners/specialists, such that erroneous clinical management decisions, such as those made by [Dr Kearon] in this case, were detected within a short time after a patient's presentation to the Hospital, and which would have resulted in recall of [Mr Le Brun] or at least advice as to the severity of [Mr Le Brun's] condition being communicated to the Boulder Medical Clinic prior to 0700 hours on 24 July 1999.

The findings of the trial judge

Mr Le Brun did not give evidence and his Honour accepted that that was because his mother, who had the conduct of the case on his behalf as his next friend, considered that Mr Le Brun did not have the memory and was not physically or psychiatrically well enough to testify. His Honour declined in the circumstances to draw the adverse inferences sought by the respondents pursuant to the rule in Jones v Dunkel (1959) 101 CLR 298. The trial judge accepted that the non‑expert witnesses who gave evidence for Mr Le Brun were honest and reliable.
In respect of the respondents' non‑expert witnesses, the trial judge was satisfied as to the honesty of Dr Joseph's evidence but was not satisfied that his notes were a comprehensive record of all of the material things said to him by Mr Le Brun during each consultation. He was not prepared to infer that a statement was not made by Mr Le Brun because it was not recorded in the notes. His Honour also found that Dr Joseph presented as a witness who was very unsure of the facts and he did not find Dr Joseph's evidence to be persuasive. The trial judge found Dr Kearon to be an impressive witness whose clinical notes were comprehensive and whose evidence was a truthful and reliable account of what she had found. Similarly, his Honour found that Dr Bested was an honest and conscientious witness who largely took good notes and, although on occasions she was anxious and sometimes short and defensive with counsel, he was satisfied as to the honesty and reliability of her evidence.
His Honour made a number of findings of fact in relation to the history and nature of Mr Le Brun's headaches, the medical attention that he sought and received in the 12 months up to 24 July 1999, his comprehension of it, and the knowledge of Dr Joseph, Dr Kearon and Dr Bested.
His Honour found that Mr Le Brun's history of headaches began in or about mid‑1998, but not later than September 1998. They were severe from the start and occurred once every one or two months. There was a hiatus of approximately two months prior to Mr Le Brun's sustained headache attack in mid‑July 1999.
The pain from Mr Le Brun's headaches was excruciating and debilitating. It was situated in an area between the right temple and the occiput (the rear of the head). Mr Le Brun occasionally vomited. He also experienced occasional tinnitus and photophobia. At some point prior to 11 July 1999, Mr Le Brun began to describe his headaches as migraines. Dr Harlock discussed his findings and possible diagnoses with Mr Le Brun and mentioned to him that his headaches may be migrainous in nature. His Honour found that Mr Le Brun complained of severe headaches to Dr Seidl, Ms Thomas, Mr Larkan, Dr Harlock and Mr Wells prior to 19 July, although in each case there was a differential diagnosis or at least a concurrent problem which was potentially related to his headache, namely sinusitis (in the case of Dr Seidl and Dr Harlock) and cervical or thoracic pain and tightness (in the case of Ms Thomas, Dr Harlock, Mr Larkan and Mr Wells).
His Honour found that Mr Le Brun's headaches between 15 March and 19 July 1999 followed a similar pattern and were always accompanied by an element of muscular tension, spasm or pain in the cervical, upper back or shoulder area. Mr Le Brun suffered one or more severely debilitating headaches over the period of about one or two weeks leading up to 11 July 1999. He missed several days work, namely 5, 7, 12 and 13 July because of his headaches and medical consultations.
His Honour found that when Mr Le Brun attended Kalgoorlie Regional Hospital on the afternoon of 11 July 1999 he was in excruciating pain. His symptoms were as noted by Dr Kearon; that is, there was no loss of consciousness, he had a Glasgow coma scale of 15, there was no meningism, and there were no adverse neurological signs such as numbness, hemiplegia, muscle weakness, interruption of vision or interference with reflexes. He was tender to palpitation of the temples and the para‑spinal region (which exhibited spasm) and had a reduced range of motion of the cervical spine. The medication given to him by nursing staff at 3.40 pm partially relieved his symptoms as noted by Dr Kearon. However, he was still in considerable pain when he was discharged from the hospital.
The primary judge made findings in relation to Mr Le Brun's understanding of the CT scans. His Honour found that, as at 11 July 1999, Mr Le Brun believed that the CT scan performed by Dr Pascoe on 28 January 1999 related at least partly to his sinus problem. Mr Le Brun also believed that the CT scan would have detected any other cranial abnormality. He led Ms Thomas to understand that he had had some form of head scan when referring to his headaches. His Honour concluded that Mr Le Brun believed that the January 1999 CT scan would have detected any sinister cause for his headaches if such had existed.
The primary judge also concluded that Mr Le Brun believed that the July 1999 CT scan was supposed to detect any intra‑cranial abnormality that existed and, as there had been no adverse finding, believed that the CT scans identified no cause for his headaches.
His Honour then turned to consideration of the knowledge of each of Dr Joseph, Dr Kearon and Dr Bested as to Mr Le Brun's history of headaches.
The primary judge found that at each consultation with Dr Joseph on or after 15 March 1999 Mr Le Brun complained of suffering severe headaches. His Honour accepted Dr Joseph's evidence that when Mr Le Brun consulted him on 15 March there were problems in his neck and Dr Joseph regarded them as associated with a football injury. Dr Joseph therefore concentrated on the cervical element of the presentation, although Mr Le Brun did complain about suffering a severe temporal headache. The primary judge was also satisfied that Mr Le Brun consulted Dr Joseph on 30 April 1999 in relation to headaches and it was for the purpose of being referred to a specialist about his headaches that Mr Le Brun went to see Dr Joseph on that occasion. His Honour found that Dr Joseph read Dr Seidl's notes, Ms Thomas' report dated 20 March 1999 and Dr Harlock's report of 13 May 1999 and was aware by no later than late‑May 1999 that Mr Le Brun had a history of headaches.
His Honour found that when Mr Le Brun attended Dr Joseph on 13 July 1999 he was complaining of severe headaches and symptoms in his neck, although Dr Joseph only noted the neck symptoms. His Honour considered it was probable that on that occasion Mr Le Brun gave Dr Joseph a similar history to the one he had given Mr Larkan that day and the previous day, namely that his neck had been manipulated by a chiropractor and this had resulted in increased headaches. That is, Mr Le Brun was complaining that his headaches were made worse by physiotherapy treatment and not about neck pain.
His Honour was not satisfied, however, that on 13 July Mr Le Brun told Dr Joseph of his attendance at the Kalgoorlie Regional Hospital on 11 July. His Honour noted that that appeared to be a strange omission but there was no evidence that Mr Le Brun had mentioned it to Mr Larkan, Dr Bested or his family, or that he mentioned it on 24 July when he was admitted to the hospital. His Honour found that Mr Le Brun treated it as an emergency episode for which he had been treated and which was in the past.
In respect of Dr Kearon, his Honour found that Dr Kearon was aware that Mr Le Brun had a one year history of severe temporal headaches and that Mr Le Brun had been seen by his GP and an ENT specialist, and that a CT scan had been performed and no abnormality detected. His Honour found that Dr Kearon knew that the headache of which he complained on 11 July 1999 had lasted for one week and that the previous headache had occurred approximately two months previously. Dr Kearon knew that the current headache was debilitating and Mr Le Brun had been unable to work. The headache began in the right temporal area and radiated to the neck, and Mr Le Brun had vomited. Dr Kearon also knew that Mr Le Brun had had manipulation of the thoracic spine by a chiropractor the previous week and was being treated by a physiotherapist. Dr Kearon formed no diagnosis as to the cause of Mr Le Brun's headache but formed the opinion that he was suffering from a severe headache exacerbated by a cervical spinal manipulation.
The primary judge found that when Dr Bested saw Mr Le Brun she was aware that he had had investigation for sinusitis, a referral to a physiotherapist and an ENT specialist. She was aware from the file that he had been complaining of headaches for some time and he gave Dr Bested a history of having headaches for approximately 18 months. Dr Bested knew that he had had a CT scan of his sinuses. The primary judge found that both Dr Bested and Mr Le Brun believed the CT scan carried out on 15 July was a head scan. Dr Bested believed from what Mr Le Brun said to her and from results which were given to her in a telephone conversation with the radiology clinic, that the CT scan was normal. Dr Bested diagnosed Mr Le Brun as suffering from migraines with a cervical and vascular component. The primary judge found that when Mr Le Brun attended Dr Bested he was not complaining of a headache. He found that Mr Le Brun attended the Boulder Medical Clinic on 19 July and saw Dr Bested in lieu of Dr Joseph to discuss the results of the CT scan, not in relation to an acute episode.

The expert evidence

A number of expert witnesses gave evidence. Before turning to the primary judge's findings in relation to that evidence, it is helpful to mention two matters which lie at the heart of the case. The first is the nature and causes of benign headaches. It was accepted by all the expert witnesses that the overwhelming number of headaches reported in the general population are benign in nature. The experts agreed that sinusitis and migraine are two of the common causes. A migraine is a recurrent form of headache which is intermittent in nature. There are a number of different types of migraine headache but the most common is a vascular headache. A headache consisting of pulsating or throbbing pain, nausea, vomiting or photophobia meets the diagnostic criteria of common migraine. Other symptoms include tinnitus and blurred vision. There is a rare form of complicated migraine known as hemiplegia migraine where the patient suffers symptoms similar to paralysis on one side of the body. A family history of migraine is a relevant consideration in diagnosis but the diagnosis remains open even where there is no family history. Migraine type headaches can be triggered by a number of causes including cervico‑genic causes or exposure to environmental conditions, such as substances like petrol or carbon monoxide. Migraine headaches can be treated by medication which deals with the pain and nausea and by rest.

The second matter is the nature of an AVM. The primary judge took the description he gave in his reasons from the report of Professor Morgan and that is not challenged. It is as follows:
Blood is pumped from the heart into large arteries that branch into progressively smaller arteries. The branching process terminates into the smallest blood vessels of the body which are known as capillaries. A capillary is so small that red blood cells must squeeze out of shape in order to pass through and it is here that oxygen and other nutrients are exchanged between the blood and other bodily tissues. After passing through the capillaries the blood is collected in small veins which interconnect, form larger veins and eventually carry the blood back to the heart to be recirculated. An AVM occurs when arteries join directly with larger veins, short-circuiting the capillaries. As a result the blood flow through the affected vessels is not slowed, as would normally occur, so that the walls of the vessels are subjected to high mechanical stresses. These stresses can cause the rupture of the vessel wall and bleeding (ie haemorrhage) into the brain. This occurred in [Mr Le Brun's] case. The central grouping, or nest, of abnormal vessels is called the nidus and often resembles a ball of string. When discussing the size of an AVM medical practitioners refer to the size of the nidus [218].
The primary judge found that the experts agreed that an AVM is a congenital defect which forms in utero and is usually asymptomatic. It is possible, and common, for a person with an AVM to lead a full life without ever knowing about it. AVMs are also rare and the trial judge accepted Professor Morgan's evidence that approximately 12 AVMs are diagnosed in Australia each year for each one million head of population.
Mr Le Brun's AVM was located in the basal ganglia. A number of experts gave evidence, which was accepted by the primary judge, as to the anatomy and blood supply of the basal ganglia. The basal ganglia comprises the caudate nucleus, the globus pallidus and the putamen, which lie within the internal capsule (Professor Knuckey, ts 2003 ‑ 2004; Dr Sharpe, ts 1010) and are located deep in the brain (Professor Morgan, ts 1296). The basal ganglia and the internal capsule control a person's motor functions. Damage to the basal ganglia can cause hemiplegia of the opposite side of the body (Professor Knuckey, ts 2007). The blood supply of the basal ganglia originates in the internal carotid artery, which terminates by branching into two new arteries, the middle cerebral artery and the anterior cerebral artery (Dr Sharpe, ts 1009). A number of other arteries branch off the internal carotid artery prior to this point of termination, the last of which is known as the anterior choroidal artery (Professor Knuckey, ts 2082 ‑ 2083). The middle cerebral artery branches into a number of smaller arteries called the lenticulo‑striate arteries (Professor Morgan, ts 1296). The lenticulo‑striate arteries and the anterior choroidal artery supply the deep aspect of the brain, particularly the basal ganglia and the internal capsule (Professor Morgan, ts 1296). The lenticulo‑striate arteries supply other parts of the brain besides the basal ganglia (Dr Grinnell‑Hallinan, ts 1758).
The primary judge noted that it was part of Mr Le Brun's case, although not essential to it, that his pre‑morbid headaches were caused by his AVM, because of pressure associated with the abnormality or with premonitory bleeds, or both. The primary judge observed that from a lay person's point of view the probability of there having been a connection would appear to be high. However, his Honour concluded that there was very little support for this hypothesis in the expert evidence.
The primary judge concluded that the weight of expert evidence did not support the contention that Mr Le Brun's headaches were a symptom of his AVM. Evidence on the issue was given on behalf of Mr Le Brun by Dr Sharpe, a neurologist, and Dr Raftos, a specialist in emergency medicine. Dr Sharpe expressed doubts as to whether there was any causal link between Mr Le Brun's AVM and his headaches because Mr Le Brun's description of his headaches varied, whereas Dr Sharpe would have expected the same type of headache if the AVM was responsible. The primary judge had difficulty with that explanation because his Honour considered that Mr Le Brun had complained of headaches of a similar pattern. Dr Sharpe also gave evidence that Mr Le Brun's history of headaches was atypical of migraine and there had never been an adequate explanation for the headaches. In cross‑examination, however, Dr Sharpe accepted that a diagnosis of migraine would fit the symptoms noted by Dr Bested.
Dr Raftos gave evidence that it was possible the headaches were caused by a small bleed of the AVM. In cross‑examination, he acknowledged that he did not have detailed experience in the area but considered it would be rare for a person with an AVM to present with a headache if the AVM had not ruptured. If a headache was caused by a ruptured AVM, the bleed would need to be sufficiently large to cause pressure on the brain or to leak through to the lining of the brain.
Professor Gubbay, who had been called to give evidence by the respondents, considered that, in retrospect, Mr Le Brun's headache symptoms were almost certainly related to the AVM which had produced migraine‑like symptoms. However, while Professor Gubbay had extensive experience in the treatment of patients with headaches, he had encountered only approximately 30 AVMs in his career. He considered that if a headache was caused by an AVM it would correspond to the site of the AVM. A headache would probably start in one area and become more generalised if it was due to bleeding.
The primary judge accepted the evidence of the respondents' witnesses, Professor Morgan, a professor of neurosurgery at the University of Sydney; Professor Knuckey, a consultant neurosurgeon and head of the Department of Neurosurgery at Sir Charles Gairdner Hospital; and Dr McAuliffe, a specialist in interventional neuroradiology. Professor Morgan gave evidence that he had treated just over 750 AVMs during his career, of which slightly over one half were unruptured. He said that in his experience headaches were not a common part of the presentation of AVMs and over half of the patients with AVMs who presented to his clinic did so with haemorrhage. Of those, one half presented because of seizure. A small number came to light with presenting symptoms of headache. He considered that while headaches are sometimes attributable to an AVM, in those cases the AVM tended to be in the cortex (or outside) of the brain 'because that's where the pain sensitive structures are and for the most part they tend to be occipital'. Mr Le Brun's AVM, on the other hand, was deep in the brain with no evidence of it presenting to the convexity surface anywhere and it was a long way from the occipital region. Professor Morgan said that he would be very surprised if the AVM in this case could be responsible for the headaches. He expressed the view that there was nothing in Mr Le Brun's symptoms prior to 24 July 1999 to indicate he was at imminent risk of rupture. That was because there was no sign of any sudden neurological deficits in his clinical presentation up to that time. He considered that it was improbable that Mr Le Brun's AVM caused his headaches.
Professor Knuckey gave evidence to a similar effect. He said that a history of headaches in the presence of an unruptured AVM may be purely coincidental. AVMs located deep in the brain rarely present with a headache unless the AVM has ruptured, and he considered it unlikely that an unruptured AVM in the basal ganglia would cause headaches since the brain matter itself does not contain pain receptors. He considered that the symptoms complained of by Mr Le Brun prior to 24 July 1999 were not caused by the AVM. While he accepted it was not impossible there was some linkage, he could not see how a headache could emanate from the basal ganglia.
Dr McAuliffe was of a similar opinion. He gave evidence that 'cerebral AVMs very, very rarely can specifically be found to be directly causal for a patient's headache in a patient with an unruptured AVM'. He considered it 'extremely unlikely' that the AVM was symptomatic prior to rupture on 24 July.
The primary judge concluded as follows:
In my view the weight of the expert evidence did not support the contention that [Mr Le Brun's] headaches were a symptom of his AVM. In my view the contrary proposition was persuasively established by Professors Morgan and Knuckey and Dr McAuliffe. Dr Raftos' evidence in cross‑examination was consistent with Professor Morgan's evidence and the evidence of Dr Sharpe and Professor Gubbay was not conclusive either way in my view, and they have considerably less relevant experience than Professors Morgan and Knuckey and Dr McAuliffe. Professors Morgan and Knuckey were not prepared to rule out the slight possibility that some bleeding or pressure from [Mr Le Brun's] AVM caused his headaches, but they were firmly of the view that the relevant mechanism did not exist in his case. They felt that the deep location of the AVM in the basal ganglia meant that any pressure or blood emanating from the AVM was unable to impact upon any pain receptors which are in the outer cortex of the brain [232].
His Honour noted that there was a coincidence between the onset of Mr Le Brun's headaches and the ultimate rupture on 24 July but accepted that the necessary mechanisms did not exist to enable the AVM to become symptomatic before it ruptured, noting in particular the point made by Professor Morgan in his evidence that there were no neurological signs prior to 24 July and an absence of meningeal signs on 11 July. His Honour concluded that Mr Le Brun's case fell into the category of cases in which an asymptomatic AVM co‑existed with another headache causing syndrome.

The specific allegations of negligence

The primary judge dealt in turn with each of the allegations of negligence made against the respondents. His Honour rejected as being without substance the allegation that Dr Joseph failed accurately to record Mr Le Brun's complaint of intense temporal headache following receipt of Ms Thomas's letter of 20 March 1999. His Honour concluded that it was sufficient for Dr Joseph simply to place the report on the file.
The primary judge also rejected Mr Le Brun's case that Dr Joseph ought to have reviewed Mr Le Brun's condition on receipt of Dr Harlock's letter and to have arranged for neurological and CT scan reviews. His Honour accepted the evidence of the respondents' experts that there was nothing in Dr Harlock's letter which indicated the need for urgent follow up. There was nothing in the letter which could be described as being in the nature of a warning or a 'red flag'. His Honour concluded that Dr Joseph was entitled to assume that Dr Harlock would have made appropriate referrals or remarks, or suggested tests, if he had any cause for concern in relation to Mr Le Brun's condition. As matters stood in late‑May 1999, there was nothing known to Dr Joseph which gave cause for alarm.
His Honour did find, however, that it was incumbent upon Dr Joseph to take an adequate history from Mr Le Brun when he next saw him. The primary judge concluded that Dr Joseph was negligent in failing to do so when he saw Mr Le Brun on 13 July 1999. His Honour concluded that in the light of the letters from Ms Thomas and Dr Harlock, Dr Joseph had at that stage a documented history of headaches dating back to 1998. His Honour found that the time had come for Dr Joseph to take a full history of Mr Le Brun's history of headaches and neck pain. His Honour concluded that had Dr Joseph done so, he would have ascertained that Mr Le Brun had been intermittingly suffering very severe temporal headaches for approximately a year and more recently had suffered a headache for approximately a week which was made worse by chiropractic treatment of his neck.
The primary judge concluded that when Dr Joseph saw Mr Le Brun on 13 July he should have ordered a cranial scan in addition to the cervical scan. His Honour noted that most of the expert witnesses regarded that as a matter of clinical judgment and opinion among them varied as to whether a cranial scan should have been ordered. He concluded, however, that as Mr Le Brun had not had a cranial CT scan, and it was a justifiable measure to take, common sense suggested that it should have been ordered as well as the neck scan.
His Honour found that Dr Joseph's failure to take an adequate history and to refer Mr Le Brun for a cranial CT scan on 13 July amounted to negligence on his part. His Honour considered it was unnecessary in view of that finding to consider whether Mr Le Brun should have been referred to a specialist instead or for a scan to have been arranged after receipt of the 15 July 1999 CT scan.
His Honour rejected the allegations of negligence against Dr Bested. He concluded there was no substance in the allegation that Dr Bested had failed to review Mr Le Brun's file at the Boulder Medical Clinic before or during her consultation with him. His Honour also considered there was no basis for the allegation that Dr Bested failed to take an adequate history from Mr Le Brun. His Honour noted that there was also wide support among the experts for Dr Bested's approach to Mr Le Brun's case and it was appropriate for Dr Bested to diagnose migraine at that stage. It was also acceptable for her to contact the radiology clinic by telephone to seek confirmation of the outcome of the CT scan on 15 July 1999. His Honour considered that the position of Dr Bested differed from Dr Joseph's because Dr Bested believed on reasonable grounds that Mr Le Brun had already had a CT scan of his head which showed no abnormality.
His Honour also rejected the allegations of negligence against Dr Kearon. His Honour rejected evidence given by Dr Raftos that Dr Kearon should have corroborated Mr Le Brun's account of having had a normal CT scan. His Honour noted that four of the expert witnesses supported Mr Le Brun's case and four others supported Dr Kearon's assessment of Mr Le Brun's case. His Honour accepted the latter's evidence. Dr Kearon had taken an extensive history - including the fact that Mr Le Brun had previously had a normal CT scan - and conducted relevant neurological tests and tests for meninges which were negative. She elicited that Mr Le Brun had symptoms in his neck consistent with recent chiropractic manipulation. His Honour was particularly persuaded by the evidence of Professor Gubbay, a neurologist, who, whilst he considered that referral for a CT scan to a specialist was an option for Dr Kearon, thought that it was a matter of clinical judgment. The primary judge concluded that, having been informed by Mr Le Brun that he had previously had a normal CT scan, Dr Kearon's assessment and treatment accorded with reasonable skill and care and that she was not negligent in not referring Mr Le Brun to a specialist or for a CT scan.
His Honour rejected Mr Le Brun's allegation that Dr Kearon was negligent in forming the erroneous conclusion that Mr Le Brun had undergone a cerebral CT scan. His Honour found that Mr Le Brun believed he had had a cerebral CT scan. The radiology clinic was closed on the Sunday on which Dr Kearon saw Mr Le Brun and it was reasonable for Dr Kearon to accept Mr Le Brun's word that he had had a cerebral CT scan. Mr Le Brun had referred to the scan in the context of presenting with an excruciating and painful headache. His Honour rejected Mr Le Brun's contention that Dr Kearon should have sought independent corroboration.
The primary judge also rejected Mr Le Brun's contention that Dr Kearon was negligent in failing to report the fact of his presentation to Dr Joseph by letter or telephone call. Dr Kearon had given evidence that she was aware of the need to report to a patient's GP in certain instances but in this case considered it sufficient simply to advise Mr Le Brun to return to hospital or to see his doctor if he did not improve or became worse. His Honour found that a resident medical officer with Dr Kearon's level of experience could not be expected to appreciate the need to report to the GP in these circumstances. Dr Kearon had carried out a thorough medical examination and cleared Mr Le Brun of any immediate risk and told him to return or seek other help if necessary. It would have taken a more experienced doctor to appreciate the risk of not informing Dr Joseph. His Honour referred to Wilsher v Essex Area Health Authority [1987] QB 730 and The Board of Management of Royal Perth Hospital v Frost (Unreported, WASCA, Library No 970069, 26 February 1997), as authority for the proposition that an inexperienced doctor was not to be judged by the same standard as an experienced doctor.
Turning to the position of the Minister, the primary judge found there was broad consensus in the expert evidence that in 1999 it was desirable for the emergency department of a public hospital to provide a discharge letter or summary, or similar information, to discharged patients or to their doctor. That was to maintain good lines of communication between health providers and to ensure safe aftercare. His Honour concluded that the foreseeable risk of harm to Mr Le Brun was increased because that was not done in this case. In circumstances where Mr Le Brun had been discharged from hospital, not because he was pain free but because he had apparently improved with medication, and where he had not been seen by a more experienced practitioner than Dr Kearon, there was a need for Dr Joseph to be informed of his attendance at the hospital because there was a possibility that further measures would be required, including a CT scan to test for any sinister pathology. It was practical to inform Dr Joseph by a short letter or to photocopy the hospital notes and post them to Dr Joseph or give them to Mr Le Brun with instructions to give them to Dr Joseph.
The primary judge concluded that the hospital was negligent in failing to have in place any adequate system for reporting cases such as Mr Le Brun's to his GP. His Honour rejected the submission of the Minister that a discharge summary or similar would only have informed Dr Joseph of information which he already knew. That was not a reasonable assumption as the hospital record might alert the doctor that the patient's condition had deteriorated or continued unabated, necessitating further tests or specialist referrals or might identify a material and critical error in the information given to the hospital - in this case, the erroneous information that Mr Le Brun had had a negative CT scan in relation to his headaches.
His Honour then turned to the question of causation. He concluded that Dr Joseph's negligence and the negligent failure on behalf of the Minister properly to inform Dr Joseph of Mr Le Brun's attendance at the hospital on 11 July materially contributed to the non‑diagnosis of the AVM. That diagnosis ought to have occurred on 15 July 1999. His Honour rejected, however, Mr Le Brun's case that his AVM was treatable and that if it had been diagnosed in mid‑July 1999 he would have elected to have microsurgery, which, on the balance of probabilities, would have led to a successful outcome prior to 24 July. His Honour found that even had the AVM been detected when Mr Le Brun said it should have been detected, he would have elected to have radiosurgery, not microsurgery, and that treatment would not have been effective prior to 24 July when the AVM ruptured.

Treatment options

There was consensus among the experts at trial that there were then, as there are now, four options available to a patient with an AVM. Those options were to do nothing or to undergo one of three types of treatment, namely microsurgery, embolisation, or radiosurgery. But not all treatments are suitable for every patient and in some cases none are suitable.

Dr McAuliffe gave uncontested evidence that in 1999 most patients diagnosed with an AVM in Australia were referred to a multi‑disciplinary body of specialists known as the AVM Board. In 1999 there were only two AVM Boards in Australia, one in Perth and one in Sydney. They were set up and endorsed by the Commonwealth Government to co‑ordinate the development and monitoring of neuro‑interventional procedures. Each Board was an inter‑disciplinary group which reviewed new cases and made recommendations to the patient as to treatment, if any. In 1999 it was not essential for a patient to be referred to an AVM Board before undertaking treatment, but this was usual in the case of publicly funded patients such as Mr Le Brun.
The trial judge found that Mr Le Brun would have been referred to the AVM Board in Perth.
It was common ground at trial that embolisation was not a viable treatment option. That left the options of microsurgery and radiosurgery. It was Mr Le Brun's case that he would have chosen microsurgery, which would have effected an immediate and complete excision of the AVM. His Honour noted that Mr Le Brun did not adduce evidence from qualified specialists directed specifically to establishing that the AVM was suitable for microsurgery.
His Honour, having reviewed the expert evidence on the topic, found that Mr Le Brun would have been advised as follows:
1.[because the AVM was then unruptured] the natural risk associated with doing nothing was up to 2 per cent.
2.Embolisation of his AVM was not possible.
3.Microsurgery was theoretically possible but carried significant risks, namely up to a 15‑20 per cent risk of death or permanent neurological deficit, and up to a 40 per cent risk of all forms of complication … The removal of the AVM would bring about an immediate cure if there were no complications, but it was strongly not recommended.
4.Radiosurgery would have a latency period of between 18 months and 2 years, possibly 3 years, during which period the natural risk of his AVM rupturing would have continued, combined with a 5 per cent risk of temporary deficit and a 5 per cent risk of permanent deficit associated with the treatment, and a 20 per cent risk of the procedure being unsuccessful. Radiosurgery was strongly recommended [424].
Those findings were not challenged on the appeal.
The primary judge then turned to the question of the election that Mr Le Brun would have made if the AVM had been diagnosed and fully assessed and he had been given that advice prior to his AVM rupturing. His Honour concluded as follows:
1.Irrespective of what he was told about the lack of a causal relationship between his AVM and his headaches, [Mr Le Brun] was becoming desperate by July 1999 and had expressed some tentative suicidal thoughts to his mother and brother. I doubt that he would have completely let go of the possibility that his headaches and his AVM were causally connected.
2.[Mr Le Brun's] specialists would have strongly recommended that he undergo radiosurgery and expressed strong reluctance to even attempt microsurgery.
3.[Mr Le Brun] was an extremely sensible person who impressed people by his willingness to make hard decisions.
4.[Mr Le Brun] would have required all the information that could be supplied to him and would have carefully discussed the options with his family. I am satisfied that he would have decided that doing nothing was not an option, so the decision would have [been] between radiosurgery and microsurgery. The figures would have appeared to [Mr Le Brun] as follows:
-A risk of death or major neurological deficit of up to 20 per cent, with an increased risk of complications falling short of death or major neurological deficit, if he underwent microsurgery.
-If he underwent radiosurgery, a risk of a rupture of the AVM during the latency period of approximately 4‑6 per cent (with unknown consequences), a 5 per cent chance of a major neurological deficit arising from the treatment, a 5 per cent chance of temporary deficit, with a 20 per cent chance of the radiosurgery being unsuccessful and he having to start again.
5.[Mr Le Brun] would have been offered treatment for his migraines.
It can be seen that from a purely statistical point of view, radiosurgery would have appeared attractive, but not overwhelmingly so. In my view, based on the evidence, [Mr Le Brun] would have listened to the expert's advice and given weight to their strong recommendation for radiosurgery, and been prepared to take the longer term view with less risk to himself, that is to say he would have elected to undergo radiosurgery and not microsurgery. This would not have been an easy decision for [Mr Le Brun] to make but at the end of the day I am satisfied on the balance of probabilities that the strength of the opinions of the specialists would have prevailed and he would have agreed to undergo radiosurgery [425] ‑ [426].
It was Mr Le Brun's case that there would have been sufficient time for his AVM to be diagnosed, assessed and microsurgery carried out prior to its rupture on 24 July 1999 if a CT scan had been arranged in a timely way. He submitted that in July 1999 he would have been processed and treated on an urgent basis. His Honour rejected that case.
Mr Le Brun contended that there was evidence in his angiogram of a stenosis of the draining vein of his AVM and this was a factor that would have been taken into account in expediting treatment in his case. The primary judge accepted that a stenosis (or narrowing) of a draining vein of an AVM seen on an angiogram prior to rupture would have been taken into account as increasing the risk of rupture and thus justifying expedition of the treatment. However, on the evidence, his Honour was not satisfied that a stenosis existed prior to the rupture of the AVM on 24 July.
His Honour found that on the balance of probabilities the minimum time between the detection of Mr Le Brun's AVM by CT scan in Kalgoorlie and the carrying out of treatment, either by way of microsurgery or radiosurgery, was one month if Mr Le Brun's treating doctors had treated the case with urgency. On the balance of probabilities, having regard to the fact that Mr Le Brun's AVM would have been regarded as asymptomatic, not bleeding and not urgent, his Honour concluded that the period of time would have been not less than three months. His Honour found that the AVM Board, or Mr Le Brun's treating team, would not have allowed him to have expedited treatment (particularly microsurgery) under those circumstances.
The primary judge accepted the evidence of Professor Gubbay that the fact a person with a recently diagnosed AVM was suffering severe headaches would not influence him to expedite treatment if the patient's headaches had been present for a long time. If they had been present for a shorter time, and he was concerned there may have been a small bleed because of a sudden onset of headache, Professor Gubbay would expedite an early assessment but that would not 'necessarily push me too hard because you can't rush into these things anyway. It's not wise to do that as too many things can go wrong and the patient really has to fully understand what's going on' (ts 1892).
The primary judge concluded that, based on his findings of negligence against Dr Joseph and the Minister, the earliest occasion on which a CT scan ought to have been carried out would have been 15 July. That is the date upon which his Honour found the AVM ought to have been initially diagnosed. In those circumstances, the AVM ruptured before any meaningful treatment of any kind could have been provided to Mr Le Brun. Accordingly, his Honour found that the breach of duty by Dr Joseph and the Minister had no material effect on the rupture of Mr Le Brun's AVM because the rupture would have occurred even if their duty of care had been fully performed. His Honour found that Mr Le Brun had failed to prove that his loss and damage was caused by that negligence and his claim was therefore dismissed.

Grounds of appeal

Mr Le Brun relies on six grounds of appeal. The grounds are discursive in nature, extending over more than 13 pages, and do little to assist in elucidating the specific matters in issue on the appeal. They do not comply with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA). The need for succinct grounds of appeal which clearly identify and focus upon the specific matters in issue on the appeal cannot be overstated. Grounds of the present kind inevitably tend to hamper rather than assist the determination of the appeal.
The grounds of appeal relied upon by Mr Le Brun can be sufficiently summarised as follows:
1.The primary judge erred in fact and law in finding that the rupture of Mr Le Brun's AVM on 24 July 1999 was not caused by the negligence of Dr Joseph or the Minister and would have happened even if their negligence had not occurred. The primary judge erred in finding that:
(a)the nature of the AVM and the symptoms Mr Le Brun was experiencing during 1999 was a migrainous syndrome simultaneously with an asymptomatic AVM;
(b)Mr Le Brun would have been referred to the AVM Board before treatment;
(c)the time that would have been required to assess Mr Le Brun for treatment by microsurgery or radiosurgery subsequent to detection of the AVM by cranial CT scan was one month if the case was treated urgently or three months if the AVM was regarded as asymptomatic, not bleeding and not urgent; and
(d)Mr Le Brun would not have elected to have his AVM surgically excised.
2.The primary judge erred in fact in finding that Dr Joseph did not need to refer Mr Le Brun for a cranial CT scan upon receiving Dr Harlock's letter of 13 May 1999 in that:
(a)the primary judge failed to take into account his own findings:
(i)of the history of Mr Le Brun's complaints of very severe temporal headache on and known to Dr Joseph prior to 30 April 1999;
(ii)that active measures were called for if Mr Le Brun's condition worsened or was not relieved over time; and
(iii)Mr Le Brun had a history of worsening and unrelieved very severe temporal headaches since September 1998;
(b)the primary judge failed to take into account:
(i)Dr Harlock was not a specialist in the cause of headaches;
(ii)Mr Le Brun had been referred to Dr Harlock for possible sinusitis which Dr Harlock had excluded as the cause of the headaches;
(iii)Dr Harlock explicitly advised Dr Joseph and alerted him to the possibility there was some other cause or 'trigger' for the headaches; and
(iv)Dr Joseph admitted he should have discussed Dr Harlock's advice with Mr Le Brun and that a cranial CT scan was one of the investigations to be undertaken;
(c)had Mr Le Brun been referred for a cranial CT scan following the letter of 13 May 1999, removal of the AVM by surgical excision could have occurred before 24 July 1999.
3.The trial judge erred in fact in finding Dr Kearon did not breach her duty of care in not referring Mr Le Brun for a cranial CT scan or review by a specialist on 11 July 1999 and in not advising Dr Joseph of Mr Le Brun's attendance at the hospital on 11 July 1999.
The primary judge should have found that Dr Kearon:
(a)did not take a full, accurate or adequate clinical history of Mr Le Brun's headaches as she should;
(b)failed to inquire whether Mr Le Brun had had a CT scan of the brain; and
(c)should not have made a diagnosis of Mr Le Brun's condition without a cranial CT scan to exclude any sinister brain pathology.
4.The primary judge erred in fact in finding that Dr Bested:
(a)took a reasonably adequate clinical history of Mr Le Brun's headaches;
(b)did not fail to apprise herself that Mr Le Brun had not had a CT scan of the brain; and
(c)did not breach her duty of care in not referring him for a cranial CT scan on 19 July 1999.
5.The primary judge erred in fact in failing to find that Dr Joseph should have referred Mr Le Brun for a cranial CT scan when Mr Le Brun attended him on 15 March 1999 or 30 April 1999 complaining of severe temporal headache.
6.The primary judge erred in fact in assessing damages only for domestic assistance from 1 October 2004 and he should have assessed damages for domestic assistance from the period 20 January 2000 to 1 October 2004.

The disposition of the appeal

Ground 1

The substantive submission in support of this ground was that, having found that:
•Mr Le Brun's AVM would have been detected on a cranial scan before it ruptured on 24 July 1999;
•Dr Joseph was negligent in failing to order a cranial scan on 13 July 1999; and
•the Minister was negligent in failing to inform Dr Joseph of Mr Le Brun's attendance at the Kalgoorlie Regional Hospital on 11 July 1999,
the primary judge should have found that but for the negligence of Dr Joseph and the Minister, the AVM would have been detected and successfully removed by microsurgery, without causing Mr Le Brun to suffer any significant neurological deficit, before it ruptured on 24 July 1999.
In order to succeed on this ground it is necessary for Mr Le Brun successfully to challenge two critical findings of the primary judge. They are, first, that the minimum time within which Mr Le Brun would have undergone any treatment for the AVM was not less than one month from diagnosis and, secondly, that Mr Le Brun would have elected to be treated by radiosurgery rather than microsurgery.
Senior counsel for Mr Le Brun argued that there was no evidence from which it could properly be concluded that if it had been detected on or about 13 July 1999, Mr Le Brun's AVM would not have been treated before it ruptured. It was submitted that the primary judge erred in finding that Mr Le Brun would have been referred to the AVM Board, and that the time required to assess him for treatment by microsurgery or radiosurgery was one month after detection of the AVM if the case was treated urgently, or three months if the AVM was regarded as asymptomatic, not bleeding and not urgent.
A number of contentions were advanced in support of that case. It is convenient to take them in turn. It was submitted that the primary judge erred in finding that, prior to 24 July, Mr Le Brun was suffering from a migrainous symptom simultaneously with an asymptomatic AVM. It was argued that the evidence established that the AVM was not asymptomatic. Once the AVM was detected, Mr Le Brun would therefore have been treated with urgency.
As I have mentioned, the finding of the primary judge that, prior to 24 July, Mr Le Brun's AVM was asymptomatic was based on the evidence of Professor Morgan, Professor Knuckey and Dr McAuliffe. It was argued for Mr Le Brun that their evidence on this point was erroneous as it was predicated upon the incomplete picture of Mr Le Brun's clinical history contained in Dr Joseph's notes. In particular, those notes did not record Mr Le Brun's long history of severe temporal headaches.
Counsel argued that based on the evidence of Professor Gubbay, Professor Fulde and Dr Raftos, the primary judge should have found that Mr Le Brun's severe headaches were a symptom of his AVM. It was submitted that as, by May 1999, sinusitis and any nasal deformity had been excluded as a cause by Dr Harlock, any neck strain had been resolved, and the CT scan had excluded a cervical strain, Mr Le Brun's history of severe headaches was more consistent with an AVM caused headache from cranial pressure or premonitory bleeding than an asymptomatic AVM unrelated to any headache.
It was also submitted that the primary judge erred in concluding that Mr Le Brun had failed to discharge his burden of proof on this point. It having been established that Dr Joseph and the Minister had breached their duty of care prior to the rupture, the burden of proof as to the nature of the AVM prior to rupture, and its non‑relevance to the breach, fell on them.
The proposition that the evidence of Professor Morgan, Professor Knuckey and Dr McAuliffe was erroneous because it was based on an incomplete history of Mr Le Brun's headaches is without substance. Their evidence did not depend upon Mr Le Brun's history of headaches, but upon the relevant anatomy and their own, considerable, experience. Their evidence was to the effect that it was improbable that Mr Le Brun's headaches were caused by his AVM as the AVM was located deep in the brain, in the basal ganglia, whereas the only pain receptors were located in the outer cortex of the brain. Professor Morgan gave evidence that cranial pressure or bleeding from the AVM sufficient to cause pain would have resulted in neurological deficit but there were no neurological signs prior to 24 July (ts 1307).
It is appropriate to turn in more detail to the relevant evidence.
In a report dated 26 April 2005 (exhibit 84I), Professor Morgan said:
11.Headaches can be caused by AVM but they are not a common presentation of AVM. The percentage of cases where AVM does cause headache is very small. In a series of 600 patients reviewed by me only a handful presented with migraine.
12.It would be very unusual for an unruptured AVM of between 1.5 cms to 3 cms in size to cause headache. The size of this AVM and its cortical location suggests that it was not the cause of Mr Le Brun's headaches in the period prior to 24 July 1999.
In his evidence‑in‑chief, Professor Morgan was referred to that report and gave the following evidence:
You say in paragraph 11 that [headaches] are not a common presentation of AVM. What is your particular experience about that?---Half of all arteriovenous malformations present without haemorrhage and of those that come to me without haemorrhage half of those present because of seizures. Of the remainder there are two sorts of headaches in a small number of those. There are those headaches that have serendipitously led to investigations and the uncovering of an AVM and there are those that are probably directly attributable to the AVM and the AVMs that tend to be directly attributable to - the AVMs have to be cortically based and large because that's where the pain sensitive structures are and for the most part they tend to be occipital and they often present with intermittent headaches often associated with an exacerbation of their neurological findings, but they are usually with significant size arteriovenous malformations.
And when you say that they are cortically based and large how does that relate to the location and size of the AVM in this particular case?---Well, cortically based is on the outside of the brain. The cortex goes right around but the ones that I'm concerned about are the large ones on the outside of the brain on the surface of the brain. This AVM appears to be deep and I see no evidence of it presenting to the convexity surface anywhere. Certainly it's a long way from the occipital region which is often associated with the headache producing AVMs and, you know, I would be very surprised if this particular AVM could be responsible for headaches.
Well again, if you were asked to express an opinion as to whether it was more probable than not that it caused the headaches what would you say as a matter of probabilities?---I would think it's unlikely to. I would think it's improbable (ts 1307 ‑ 1308).
In cross‑examination of Professor Morgan by senior counsel for Mr Le Brun, the following exchange occurred:
Now it is the case, is it not, doctor, that it is unclear what the mechanism is when there is an AVM which causes headache?---No. The mechanism of headaches is well known. I mean, we know where the pain fibres are. The linkage between how AVMs cause headaches is less well known but it must be on the basis of several obvious mechanisms of which you may not be able to a cause in a particular case [sic].
That's what these authors are saying, the actual mechanism by which headaches are produced, that is produced in a patient which has an AVM, is unclear, and you cannot be ‑ ‑ ‑ ?---In a ‑ ‑ ‑
You cannot ‑ ‑ ‑ ?---Yes. In an individual case, but it has to be one of several mechanisms though, several mechanisms. You have to be able to say that it's either this or this or this. It's well known that there are only several mechanisms of headaches but you may not be able to assign the cause in a particular instance (ts 1327 ‑ 1328).

In his report of 11 October 2004 (exhibit 84O), Professor Fulde, a specialist in emergency medicine, expressed the view that Mr Le Brun had been appropriately treated by Dr Kearon in his attendance at the hospital on 11 July. He considered that if Mr Le Brun had continued to have severe unrelieved pain then further investigation would be indicated but if the symptoms abated with analgesics at discharge that was not necessary.
In the course of his evidence, Professor Gubbay was referred to the view of Dr Sharpe that a CT scan should have been taken on 11 July 1999. Professor Gubbay considered that, based on the factors mentioned by Dr Sharpe, most medical practitioners would have ordered a CT scan, but was of the view that whether or not a CT scan should be done even in those circumstances was still ultimately a matter of clinical judgment. Professor Gubbay said:
If the headache was significantly different from previous headaches, if the neurological examination had shown anything that might have suggested that there was a structural abnormality inside the cranium, in other words if there were no neurological physical signs and there was no epilepsy or other pointer to a disturbance within the brain or within the cranium, then the medical practitioner may have elected not to have done a further test at that time. If, for instance, that does happen from time to time that one is not sure as to whether to order a CT scan, there is time to wait in nearly all cases. Its so rare that somebody with burst blood vessels while you are waiting to work out what a headache might be due to, and so if you - the thing that the medical practitioner will be worried about missing is not an AVM, which is a rare phenomenon, but a brain tumour. If you wait a week or two or three until you feel its obligatory to carry out a test like that then you really haven't lost very much (ts 1855).
Professor Gubbay gave evidence that there was nothing in Dr Kearon's notes to suggest that Mr Le Brun had a brain tumour, apart from headache which almost everyone suffers from time to time. There was nothing specific that would have made it obligatory to carry out a CT scan at that stage. There was nothing in Dr Kearon's notes which required the patient to be referred for a CT scan. Professor Gubbay gave evidence that he considered most medical practitioners would have ordered a CT scan on 11 July as it was common to do so because patients ask for investigations and want reassurance. Dr Russell‑Weisz, an emergency specialist, considered that based on the history taken by Dr Kearon and the results of her examination of him which disclosed no neurological signs, there was no need for Mr Le Brun to be referred for a CT scan (ts 1656, 1667, 1670).
Professor Jelinek, an emergency medicine specialist, in a report dated 3 February 2005 (exhibit 95), considered that no further investigation was required by Dr Kearon on 11 July. Mr Le Brun had presented with a past history of similar headaches for a year, the headache then being experienced was of the same pattern and the examination showed a lack of meningeal irritation and neurological findings. All of that strongly suggested a benign cause of headache. Professor Jelinek noted that although Dr Kearon described the headache as 'severe', the fact that analgesics were not required for four days prior to presentation suggested that it may not have been.
In my view, on the evidence, the primary judge correctly found that Dr Kearon was not in breach of her duty of care in not referring Mr Le Brun to a specialist or for a CT scan.
It was further contended on behalf of Mr Le Brun that Dr Kearon was negligent in failing to refer Mr Le Brun for assessment by a specialist, neurosurgeon or neurologist. On the appeal it was argued that the primary judge erred in finding that a superior was not readily available to Dr Kearon, the evidence being that Dr Brand, a physician, was available. It was argued by counsel for Mr Le Brun that the obvious step for Dr Kearon to take if in doubt about investigations required into Mr Le Brun's headache was to seek assistance from a physician such as Dr Brand.
His Honour's finding in that regard, however, was in respect of the question of whether Dr Kearon should have consulted a superior as to whether a discharge letter should be provided to Dr Joseph. It was not part of the case for Mr Le Brun that Dr Kearon should have sought assistance from Dr Brand. In any event, on the evidence there was nothing arising out of the history and findings of Dr Kearon that required her to refer Mr Le Brun to a specialist or to consult a superior with respect to any further investigations into Mr Le Brun's headaches.
In relation to the other limb of this ground of appeal, it was submitted on behalf of Mr Le Brun that the primary judge erred in finding that in not advising Dr Joseph of Mr Le Brun's attendance at the emergency department Dr Kearon was not in breach of her duty of care. This contention covers much of the same area raised by the cross‑appeal and I do not consider it is necessary to deal with it. In my view, nothing turns on the question of whether Dr Kearon was negligent in not informing Dr Joseph of Mr Le Brun's attendance at the hospital and her findings on examination. Any such communication would not have reached Dr Joseph before, at the earliest, Monday, 12 July 1999, and any further investigation or tests by Dr Joseph would only have taken place on or after that date. For the reasons I have set out in relation to ground 1, no effective treatment would have been available to Mr Le Brun before his AVM ruptured on 24 July even if Dr Joseph had been so informed. Moreover, the view of the primary judge, based on earlier authority, that the standard of care of a relatively junior doctor such as Dr Kearon is not the same as that owed by an experienced doctor, gives rise to an important question as to the effect of the recent decision of the High Court in Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 in this area. That was not a matter which was addressed in argument on the appeal and it is appropriately left to another occasion.
I would dismiss this ground of appeal.

Ground 4

The essential contention on this ground was that the primary judge should have found that Dr Bested breached her duty of care in not referring Mr Le Brun for a cranial CT scan on 19 July 1999. It was contended that Dr Bested did not do so because she failed to take an adequate clinical history and failed to ascertain that Mr Le Brun had not previously had a CT scan of the brain. Again, this ground of appeal is rendered otiose by my finding on ground 1 but it is appropriate to consider it.
It was submitted by senior counsel for Mr Le Brun that the history taken by Dr Bested was deficient in a number of respects. It was said that it wrongly recorded that Mr Le Brun had had a normal CT scan of the head, it made no reference to Dr Harlock's letter excluding sinusitis as a cause of the headaches, it did not refer to Mr Le Brun's attendance at the hospital on 11 July, and it did not record whether the CT scan on 15 July was of the neck or head.
It was submitted that the finding of the primary judge that it was reasonable for Dr Bested to believe Mr Le Brun had already had a normal CT scan of his head was not sustainable in circumstances where the CT scan of 15 July 1999 had either been brought to the appointment by Mr Le Brun or could easily have been transmitted by Kalgoorlie Radiology to Dr Bested. Counsel argued that the evidence of Dr Bested that she had telephoned Kalgoorlie Radiology asking for the results of a CT head scan report and had been told that it was a negative study was, and should have been found by the primary judge to be, improbable. The purpose of the consultation was to review the cervical scan of 15 July 1999 and it is quite improbable the radiology clinic would have given results of that CT scan as a 'head scan'. There was also no record of such a conversation in the clinical notes. It was further argued that a particular notation which appears in the clinical record was an obvious reference to the need for referral for a cranial CT scan, not, as Dr Bested testified, a reference to continuing physiotherapy.
Counsel argued that Dr Bested plainly failed to make proper enquiries as to the part of the body of which the CT scan had been done. It was not open to the primary judge to conclude that it was reasonable for Dr Bested to believe that Mr Le Brun had already had a normal CT scan of his head without proper enquiries having been made. Had Dr Bested made proper enquiries she would have ascertained that it was not a scan of the brain. The overwhelming medical evidence was that Dr Bested should, on Mr Le Brun's presenting symptoms and history, have referred him for a cranial CT scan.
It is important to note at the outset that Dr Bested saw Mr Le Brun only once, on 19 July 1999. The primary judge found, and it is not challenged on the appeal, that at the time of the consultation Mr Le Brun was not suffering a headache. Dr Bested took a history of Mr Le Brun's headaches, diagnosed migraine and prescribed treatment for it. She told Mr Le Brun to come back if the treatment did not work, his headaches changed or he remained concerned.
The primary judge found Dr Bested to be an honest and reliable witness [194] and to be a reliable note‑taker [210]. The primary judge also accepted the evidence of Dr Bested that she did not know that on 13 July Dr Joseph had referred Mr Le Brun for a CT scan of the cervical spine [166]. In that connection it is significant that Dr Joseph's medical notes of 13 July 1999 refer simply to 'CT scan'; they do not refer to the part of the body that is to be the subject of the scan. The primary judge further accepted Dr Bested's evidence that both Mr Le Brun and the radiology clinic informed her that a head scan had been done and that it was normal. Dr Bested's contemporaneous medical notes record that a CT scan of the sinuses 'and head' was normal; there is no reference in Dr Bested's notes to a CT scan of the neck. His Honour also accepted Dr Bested's evidence that Mr Le Brun did not take the CT scans of 15 July with him when he saw her on 19 July.
In Devries v Australian National Railways Commission (1993) 177 CLR 472, Brennan, Gaudron and McHugh JJ said:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' (479). (footnotes omitted)
It cannot be said that the findings of the primary judge were inconsistent with incontrovertible facts or glaringly improbable. They were findings that were open to his Honour and no basis has been shown for interfering with them.
While Dr Bested was not informed by Mr Le Brun that he had attended the emergency department on 11 July 1999, the evidence of Professor Kamien and Professor McBride was that a general practitioner would not be expected to elicit that information if it was not volunteered by the patient. On the evidence, there was nothing to cause Dr Bested to make enquiries which would have elicited that information.
The contention by senior counsel for Mr Le Brun that the symbols '→ CT Ø' in Dr Bested's notes were not, as Dr Bested said they were, to indicate 'continued physiotherapy', but rather to mean 'referral for a cranial CT scan', attacks a finding of credibility made by the primary judge. That contention was part of Mr Le Brun's case at trial and was the subject of cross‑examination of Dr Bested by counsel for Mr Le Brun. It was rejected by the trial judge who accepted Dr Bested's evidence.
Again, it cannot be said that the finding of the primary judge was inconsistent with incontrovertible facts or glaringly improbable. There is no basis for interfering with it.
There was, as the primary judge observed [343], substantial support in the expert evidence for the approach that Dr Bested took in treating Mr Le Brun.
In his report (exhibit 22), Dr Raftos said that Dr Bested should have checked the medical records at the Boulder Medical Clinic which would have revealed that Mr Le Brun had never had a cerebral CT scan. He considered that Dr Bested should have arranged one urgently. In cross‑examination, Dr Raftos said he would not accept a patient's word for the result of a scan and would want to go to the source. He considered that if neither the CT scan nor the report was available, it was reasonable for Dr Bested to make enquiries of the radiology clinic over the telephone to find out the result of the CT scan, and if she understood the CT scan was normal then the course of action she took may have been appropriate (ts 827 ‑ 828). Dr Raftos accepted in cross‑examination that, based on the history Dr Bested took, it was appropriate to diagnose and treat migraine, with the proviso that more needed to be done to ensure that there were no other 'nasty causes' of the headache. Dr Raftos could not say with certainty that he would have arranged a CT scan that day and said he may have given Cafergot, prescribed by Dr Bested, and waited to see how that went before arranging a CT scan or referral to a specialist. There was nothing on 19 July to indicate a sense of urgency (ts 829 ‑ 831). Dr Raftos considered that Mr Le Brun's symptoms were reflective of migraine although he did not consider that a positive diagnosis of migraine could be made at that stage (ts 825).
In her report of 7 October 2004, Professor McBride said it was appropriate that Dr Bested review the file to ascertain whether there was a report of a cerebral CT scan in it and, if not, to refer Mr Le Brun for one (and see also ts 1071). In cross‑examination, Professor McBride agreed that a general practitioner was entitled to rely on a statement by a patient that a CT scan of the head had been carried out and that it was normal (ts 1105). Professor McBride considered that a diagnosis of migraine could be treated as a working diagnosis at the consultation of 19 July and that it was reasonable for Dr Bested to treat it as migraine with a view to seeing whether that fixed the problem before referring Mr Le Brun to a neurologist or doing a CT scan (ts 1104 ‑ 1105). Professor McBride accepted that, considered overall, there was nothing to indicate that what Dr Bested did on 19 July was incompetent or negligent (ts 1105).
That was also the view of Dr Sharpe (ts 1025). Dr Sharpe considered that Mr Le Brun had presented with symptoms which were consistent with migraine (ts 1023 ‑ 1024). He considered that based upon the history Dr Bested took and the symptoms she recorded, he would have been reasonably reassured that there was nothing untoward at that time (ts 1026).
That evidence was consistent with the evidence of Professor Kamien. Professor Kamien considered that it would have been incumbent upon Dr Bested to refer Mr Le Brun for a CT scan of the brain had she not understood that he had already had one (ts 1940). He considered it was reasonable practice, where the result of a CT scan was not on the file, for Dr Bested to contact the radiology centre by telephone to ask what the CT report was (ts 1952). In his opinion, Dr Bested appeared to have taken an adequate history and, based on the statement by Mr Le Brun that he had had a brain scan which was normal, Professor Kamien said he would have been confirmed in the view that Mr Le Brun was suffering from an uncomplicated migraine. Based on the history taken by Dr Bested the diagnosis of migraine was a most likely cause. Professor Kamien considered that Dr Bested's treatment was 'perfectly acceptable and in accordance with proper professional standards' (exhibit 84B).
Professor Gubbay considered that a statement by a patient that they had had a CT scan 'of the head' should be clarified (ts 1872).
In my view, on the evidence, the primary judge properly found that Dr Bested was not in breach of her duty of care in not referring Mr Le Brun for a cranial scan on 19 July 1999. No error has been disclosed. I would dismiss this ground of appeal.

Ground 5

This ground sought to raise a new allegation, namely, that Dr Joseph was negligent in failing to refer Mr Le Brun for a cranial CT scan on 15 March or 30 April 1999.
It was acknowledged by senior counsel for Mr Le Brun that the failure of Dr Joseph to refer Mr Le Brun for a cranial CT scan on 15 March or 30 April 1999 was not pleaded in the statement of claim. But it was contended that a finding of negligence in that respect was a necessary direct or inferential conclusion from the finding of the primary judge that a cranial CT scan should have been ordered on 13 July when Mr Le Brun presented to Dr Joseph with the same clinical presenting symptoms and medical history. That is, it was contended, in substance, that the medical history which the primary judge found should, in the exercise of reasonable care, have caused Dr Joseph to refer Mr Le Brun for a CT scan on 13 July, should equally have caused Dr Joseph to refer Mr Le Brun for a CT scan on 15 March or 30 April 1999. It will be recalled that it was on 30 April that Dr Joseph referred Mr Le Brun to Dr Harlock.
Counsel sought leave to amend the statement of claim by adding a particular that Dr Joseph was negligent in failing to organise a cranial CT scan on 15 March or alternatively 30 April 1999, arguing that such a case was not materially different from the case litigated at trial. It was submitted that it was open to this court to draw the inferences of fact which establish that Dr Joseph was in breach of his duty of care.
I would refuse the application for leave to amend. Such a case was not pleaded or run at trial and accordingly it was not considered by the primary judge. The case was opened by senior counsel for Mr Le Brun specifically on the breaches of duty pleaded in the statement of claim. In the course of the opening, counsel for Dr Joseph emphasised that he was approaching the case on the basis that the issues were confined by the pleadings. That drew no dissent from senior counsel for Mr Le Brun. Nor was there any suggestion in the closing address on behalf of Mr Le Brun that the case was run on any other basis.
No doubt it was for that reason that the expert medical evidence was not directed to any question of Dr Joseph's failure to refer Mr Le Brun for a CT scan on 15 March or 30 April 1999. That was never the focus of attention at trial. And it seems to me far from self‑evident that such a finding is a necessary direct or inferential conclusion from the finding of the primary judge that a cranial CT scan should have been ordered on 13 July. It cannot now be said that the point, if raised at trial, could not possibly have been met by further evidence, including cross‑examination: Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598 [51] ‑ [53]. In my view, it is not open to Mr Le Brun to seek to take the point on appeal.
I would dismiss this ground of appeal.

Ground 6

In light of the conclusions I have reached above, this ground does not arise. It can, in any event, be dealt with quite briefly. It was submitted on behalf of Mr Le Brun that the primary judge erred in providing for an allowance for heavy domestic assistance to commence from October 2004, when Mr Le Brun was able to live independently, and it should have commenced from 20 January 2000, when he was discharged from hospital into the 24‑hour care of his family. It was suggested that the primary judge had inadvertently made the commencement date October 2004 rather than 20 January 2000.

I do not agree. It is apparent that the commencement date of the allowance was based upon the needs of Mr Le Brun when living independently and not while he was receiving 24‑hour care. As the respondents submit, that is supported by the evidence of the occupational therapist, Ms Jodrell. Counsel for Mr Le Brun has not pointed to any error in that approach.
I would not have upheld this ground of appeal.

Conclusion

It is unnecessary to deal with the cross‑appeal by the Minister in light of the conclusions which I have reached. I would dismiss the appeal.