McCann & ANOR v BUCK
[2001] WASCA 78
•15 MARCH 2001
McCANN & ANOR -v- BUCK [2001] WASCA 78
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 78 | |
| THE FULL COURT (WA) | 15/03/2001 | ||
| Case No: | FUL:72/2000 | 6 NOVEMBER 2000 | |
| Coram: | KENNEDY J IPP J OWEN J | 6/11/00 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | BRENDA PATRICIA McCANN BRENDA PATRICIA McCANN as ADMINISTRATRIX OF THE ESTATE OF JAMES McCANN MARTIN BUCK |
Catchwords: | Medical practitioners Liability in tort Negligence Duty of care Whether medical practitioner owed duty of care to parents of patient to avoid expensive overseas treatment to be funded by parents Local treatment not similar to that available overseas No breach of duty of care Turns on own facts |
Legislation: | Nil |
Case References: | Nil Chappel v Hart (1998) 195 CLR 232 Crimmins v Stevedoring Industry Finance Committee (2000) 74 ALJR 1 F v R (1983) 33 SASR 189 Hawkins v Clayton (1988) 164 CLR 539 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Hill v Van Erp (1997) 188 CLR 159 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 Perre v Apand Pty Ltd (1999) 198 CLR 180 Powell v Boldaz (1998) Lloyd's Rep Med 116 Rogers v Whitaker (1992) 175 CLR 479 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 State Rail Authority (NSW) v Earthline Construction Pty Ltd (In Liq) (1999) 73 ALJR 306 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : McCANN & ANOR -v- BUCK [2001] WASCA 78 CORAM : KENNEDY J
- IPP J
OWEN J
- BRENDA PATRICIA McCANN as ADMINISTRATRIX OF THE ESTATE OF JAMES McCANN
Appellants
AND
MARTIN BUCK
Respondent
Catchwords:
Medical practitioners - Liability in tort - Negligence - Duty of care - Whether medical practitioner owed duty of care to parents of patient to avoid expensive overseas treatment to be funded by parents - Local treatment not similar to that available overseas - No breach of duty of care - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellants : Mr T Lampropoulos
Respondent : Mr N W McKerracher QC & Mr D J Bourke
Solicitors:
Appellants : Hoffmans
Respondent : Clayton Utz
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Chappel v Hart (1998) 195 CLR 232
Crimmins v Stevedoring Industry Finance Committee (2000) 74 ALJR 1
F v R (1983) 33 SASR 189
Hawkins v Clayton (1988) 164 CLR 539
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
Hill v Van Erp (1997) 188 CLR 159
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Perre v Apand Pty Ltd (1999) 198 CLR 180
Powell v Boldaz (1998) Lloyd's Rep Med 116
Rogers v Whitaker (1992) 175 CLR 479
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
State Rail Authority (NSW) v Earthline Construction Pty Ltd (In Liq) (1999) 73 ALJR 306
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1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Owen J. I agree with those reasons for dismissing the appeal.
2 IPP J: I have had the benefit of reading the reasons to be published by the Hon Justice Owen. I am in agreement with those reasons and have nothing further to add.
3 OWEN J: This is an appeal against the decision of a Judge of the District Court of Western Australia dismissing the appellants' claim for damages for negligence. At the conclusion of the hearing the Court announced that the appeal would be dismissed and that reasons would be published later. These are the reasons.
Background
4 Brenda Patricia McCann ("the appellant") commenced an action on her own behalf and in a representative capacity on behalf of the estate of her late husband James McCann ("the deceased"), who died on 23 November 1997. The action was for damages said to have been suffered as a result of the alleged negligence of the respondent, a medical practitioner in specialist practice as an oncologist.
5 The appellant and the deceased were married in 1963 and had four children. Catherine McCann ("Catherine"), who was born on 23 August 1964, and who died on 19 July 1996, was one of those children. Until 1994 Catherine enjoyed robust good health. However, on 22 June 1994 Catherine was seen by Dr Ian Hammond, a gynaecological oncologist, and two days later was admitted to hospital with possible ovarian cancer.
6 Dr Hammond carried out surgery on Catherine on 27 June 1994. Pathology conducted after the surgical procedures indicated a "primary so-called high grade borderline tumour of the appendix". The medical evidence generally was to the effect that Catherine's cancer had produced a condition known as pseudomyxoma peritonei. Upon discharge from hospital Catherine was referred to the respondent, although Dr Hammond continued to receive reports on her progress and to discuss the matter with the respondent.
7 From about July 1994 until early 1995 the respondent kept Catherine under review. Unfortunately, the tumour continued to grow and to spread. Early in 1995 the respondent recommended a course of chemotherapy and
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- it was commenced. In April 1995 Dr Hammond saw her again but took the view that Catherine was not a suitable candidate for further surgery. Apparently she was extremely disappointed at this advice and was referred to a clinical psychologist for assistance. The initial chemotherapy was ineffective and the respondent changed her to a different chemical agent. However, by September 1995 the respondent had formed the view that this, too, was having no impact in arresting the spread of the disease. At a meeting in September 1995 (at which the appellant was present) the respondent told Catherine that there was no further forms of chemotherapy available and that there was nothing further he could do for her. Not surprisingly, she was devastated at this advice.
8 Through the Internet, the deceased became aware of work being done by a Dr Sugarbaker in the United States on cancers of the type suffered by Catherine. He then came to learn of further work being carried out in this area in the United States by a Canadian practitioner, Dr Brian Loggie. The family communicated with Dr Loggie and were given some encouragement that his treatment might assist Catherine. At the risk of oversimplifying things, I think it is fair to describe the Sugarbaker and Loggie methods as involving a combination of surgery and chemotherapy. During the surgery the tumour is "debulked" and intraperitoneal chemotherapy is administered.
9 In November 1995 the deceased and Catherine went to see the respondent and discussed with him the efficacy of the treatment being sought by Catherine from Dr Loggie. What occurred at this meeting is at the heart of the appellant's claim and I will describe the respective versions in some detail a little later. It is sufficient to say at this stage that the respondent was aware of the Sugarbaker treatment and thought that the Loggie method was basically the same. At the time the respondent was not aware of anyone in Australia who was carrying out this form of treatment or of any work in that general area being done at Royal Perth Hospital ("RPH"). There was a general discussion in which Catherine had expressed a determination to undergo the treatment. The respondent agreed to write a letter in support of Catherine's application for an "act of grace" payment to assist with the cost of the treatment.
10 Catherine and the appellant then travelled to the United States. On 22 November 1995 Catherine underwent treatment from Dr Loggie at the Bowman Gray Hospital. Catherine remained in hospital for about eight days. She then spent a further period of approximately two weeks convalescing prior to their return to Perth. According to Dr Loggie's
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- operative note, the surgical procedure was carried out on 22 November 1995, and involved:
"Extensive debulking of abdominal tumour and drainage of malignant ascites, completion omentectomy splenectomy, repair of liver laceration, repair of sigmoid laceration, intraperitoneal heated chemotherapy with Mitomycin."
12 The allegation of negligence made against the respondent in the action arises from the consultation between Catherine and the respondent in September 1995, in which she was told the respondent was unable to offer any further treatment. Negligence is also said to arise from the discussion between Catherine and the respondent in November 1995, at which time the respondent is alleged to have said there was no current chemotherapy available in Australia to treat her problem.
13 The expenses associated with the trip to the United States were met by the appellant and the deceased from the proceeds of a bank loan taken out over their house for that purpose. The application for an act of grace payment to assist with the expenses was unsuccessful.
14 The appellant alleges that contrary to the statement by the respondent, treatment of the kind provided by Dr Loggie was available in Australia, and in fact at RPH. Had Catherine, the appellant and the deceased been aware of that, then Catherine would not have travelled to the United States and the appellant and the deceased would not have incurred the expenses that they did in travelling to the United States and in undergoing treatment there.
15 The appellant also asserted that had the defendant made inquiry of (among other institutions) RPH, he would not have made the statement, and that it was negligent of him not to make enquires in all the circumstances.
16 In his defence the respondent asserted that he advised Catherine and the deceased that the proposed treatment to be provided by Dr Loggie was experimental and in his opinion would not be helpful to Catherine. He also said there was no discussion as to whether the treatment was available in Western Australia. The respondent also asserted that the
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- incurring of the expense did not result from any negligence on his part and was in any event incurred as a result of the negligence of the appellant and the deceased, in ignoring the advice given to them by him.
17 The quantum of the appellant's claim (assuming she could establish negligence) was agreed in the sum of $108,302.80 including interest to 14 December 1999, with an agreed daily accrual thereafter.
The Evidence Led at Trial
18 In the first place it is necessary to recite the evidence of the two critical meetings between Catherine and the respondent. The next step is to consider the evidence concerning the availability of relevant treatment in Australia, particularly at RPH.
19 It was common ground that in September 1995 Catherine had a consultation with the respondent at which the appellant and Catherine's sister (then aged 11) were present. The appellant's evidence was that at that meeting the respondent sat with his feet on the desk and his hands behind his head and said that there was nothing more that he could do for Catherine. The appellant asked whether assistance would be available in an area of greater population and the respondent said words to the effect that the world was a big place but that it would mean "a lot of very expensive phone calls". The consultation ended at that point.
20 The defendant said that the consultation took place at his office and he had a reasonable recollection of it but did not recall Catherine's sister being in the room. He effectively denied the allegation about his deportment when informing Catherine that nothing further could be done, saying that was not the way that he would deliver bad news and he did not practise in that way. He acknowledged that Catherine had been devastated by his advice. As to matters then discussed, the respondent said:
"I think at that stage they were both a little bit shell shocked to ask any further questions [sic]. I told her that I wasn't aware of any further chemotherapy that was available for her condition, that I had recently been at a conference in which they were talking about some of the newer drugs which are available now in 1999 but certainly were not available in 1995, and I had told her that it's possible that some of these drugs may become available and some chemotherapy options would be potentially possible. I did that mainly to leave her some encouragement
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- rather than to give her a totally negative picture. I said to her that perhaps at this stage it was a time to reflect on the situation, she didn't need to suddenly move to another form of treatment immediately but perhaps she should come back and see me and discuss things further at a later time."
21 The respondent agreed there had been no other treatment that he was aware of that could help Catherine, and had he felt any other option existed he would have recommended it. As to his knowledge of the existence of any other form of acceptable treatment for Catherine at that time, he said:
"I was aware of the (Sugarbaker) treatment. That was not discussed with Catherine or her family at that stage, but when one goes over in one's mind the things that one could do for a patient in her situation, having a rare and unusual cancer, these are the things that I considered. As I said I was aware of the (Sugarbaker) treatment from my training in the United States and that I felt that there were features in Catherine's case that made that not appropriate; primarily her poor general condition. She was having great difficulty in maintaining her weight and she was quite weak and that would have made the chance of withstanding a big operation more difficult. The (Sugarbaker) treatment also incorporated intraperitoneal Mitomycin C. She had had that drug and the disease had clearly progressed on it. It seemed to indicate that her disease was resistant to Mitomycin C, so even giving it by the intraperitoneal approach would not necessarily in my experience show that - it would have had no effect, and lastly the terribly extensive nature of the disease, particularly in the pelvis, would have made a radical approach impossible, and as it turned out, Dr Loggie was unable to remove the disease in the pelvis and that had to be left behind. So those are the reasons that I had considered in my mind while I was trying to think of something that I could offer this unfortunate young lady, but I did not feel it was appropriate treatment for her."
22 Once they had obtained the information about the Loggie treatment and had corresponded with Loggie, Catherine and her family decided to see the respondent again. A further consultation occurred in November 1995. It was attended by Catherine and the deceased. Of course, neither of them could give evidence at the trial, although the deceased had sworn an affidavit before he died. In her evidence the appellant said that
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- Catherine had a lot of faith in the respondent and had attributed his behaviour in September to anxiety. The family had discussed how they could get the money to go to America and were informed of the act of grace scheme. They were told that the best chance of getting approval would be to go to the most eminent medical practitioner that they knew and obtain support from that source. As the appellant put it: "So who else but [the respondent] could we go to". In October the family made an application for mortgage finance to fund the trip and it was approved on 9 November 1995. On 13 November 1995 the consultation with the respondent occurred.
23 In his affidavit the deceased deposed that he had informed the respondent of the "alternative treatment in the USA (ie surgery combined with intraperitoneal mytomycin C)", and "Catherine and I were informed at this consultation that this treatment was not available in Australia. The [respondent] confirmed this advice in an open letter dated 13 November 1995 to assist us in applying for an Act of Grace Grant". The deceased also said that he denied that the respondent had advised he and Catherine that the treatment in question was being evaluated but the respondent did not endorse the same, or believe that it would be of benefit to her, that the chances of helping Catherine's cancer were unknown, that the treatment was experimental or that ultimately the choice was for Catherine. The deceased did agree that the respondent had wished Catherine "good luck" in relation to the treatment.
24 The respondent's evidence was that Catherine had returned with her father, and said he was at that time aware through Dr Hammond that Catherine had sought another surgical opinion. At the consultation Catherine told him she had found Dr Loggie on the Internet, and had received some patient information from him, which was produced. The respondent said that on a perusal of that material "it became obvious that this was basically (Sugarbaker) treatment that (he) was aware of", and he had mentioned that. In relation to his view of the treatment the respondent said:
"The Mayo Clinic where I worked specialised in the treatment of gastro intestinal oncology for many, many years and they had been at the forefront, of many of the new research protocols and drug protocols for bowel cancer and also had gained experience with appendiceal cancer and published their experience which was basically greater than any other institute in the United States. They had approximately 45 patients which translates to a huge population of patients that they had seen over the years,
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- and they had never referred a patient to have the (Sugarbaker) treatment from there and my discussions with my teachers and the clinicians I worked with at that institute were that this treatment remained experimental, that it was advocated by Dr (Sugarbaker) who had a firm belief that it was helpful but this firm belief was not shared by other specialists in the field."
25 The respondent also gave evidence as to what he had told Catherine at that consultation and as to her response:
"Well, I said to her it was experimental. I told her that I had some experience with this protocol, although in an indirect fashion, from my work in the United States and that I knew that it was experimental, I knew that it was highly toxic and that it had a mortality associated with the procedure and I told her I didn't think that she was suitable for that treatment." … "Catherine was very, very confident that Prof Loggie had the answer to her problem and that she had told me that her contacts with him had been very encouraging and that he had indicated some hope for her and that he had said that she would be a good candidate for this type of procedure and that he had experience in that area and she was very, very enthusiastic concerning this treatment and I didn't see it was my place to totally dissuade her or reduce her enthusiasm." … "I tried to be supportive to what Catherine had obviously put a lot of faith into in terms of my demeanour. I certainly didn't say anything that was particularly supportive of the treatment itself. I wished her good luck. I felt that that was the least I could do. I certainly didn't recommend that she have the treatment but I wished her best fortune in terms of how things went."
26 The respondent denied that any financial cost had been mentioned to him, either directly or obliquely. He agreed to her request to prepare a letter in support of the act of grace payment and he did so. He said that he was not particularly confident that an act of grace payment would be forthcoming. Had he been more confident he "certainly [would have] put more references and completed a longer and more - more of a report than a short letter."
27 The respondent worked at King Edward Memorial Hospital and at Sir Charles Gairdner Hospital. It was not suggested at trial that any relevant work (experimental or otherwise) was being carried out at either of those institutions. The respondent conceded that he had made no
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- inquiries of the Oncology Department at RPH as to whether there were any new research or experimental techniques that could have been offered locally by comparison to what Dr Loggie proposed.
28 One of the witnesses called by the appellant was Mr Stephen Archer, a general surgeon at RPH. In September 1996, shortly after he had seen Catherine for the first time he provided a medical report in which he said that since approximately June 1994 he had been treating patients with intra-peritoneal chemotherapy. He went on to say that at that time they had not combined chemotherapy with hyperthermia at the time of the operation. In further reports dated June 1997 and August 1999 Mr Archer confirmed that the treatment available at RPH at the time (post-operative intra-peritoneal chemotherapy without hyperthermia or radical debulking) was different to the treatment being offered by Dr Loggie. It was true to say, therefore, that the Loggie treatment was not available at RPH in 1995. In his evidence at trial, Mr Archer said:
"If we had treated Catherine McCann in 1995, it is very likely that our treatment would have been less radical to that performed in the United States. The reason for this is that treatment at a specialised institution with a large experience in the disease will be better than we could offer with our first case. Therefore it is unlikely that I would have undertaken the same degree of radical debulking surgery performed by Dr Loggie on Ms McCann in the United States. I had the opportunity to discuss Catherine McCann's treatment with Dr Loggie at a meeting in Germany in 1998 (prior to any knowledge of this legal claim) and he indicated that Catherine's disease was very extensive and as I recall he stated that the surgery took 17 hours to complete. Even in the patients with extensive solid disease that I have treated since 1997, I have been hesitant to undertake very radical and prolonged surgery as the complications are higher and the possibility of achieving adequate debulking low. If radical debulking cannot be achieved, then the chemotherapy will have little effect on tumour growth. Two of the three patients with extensive solid disease treated at Royal Perth Hospital have died of their disease within 12 months of surgery. The third patient is deteriorating rapidly."
29 Mr Archer conceded that there were two particular factors that he would have taken into account had he been considering treatment for Catherine in 1995. The first is that none of the patients on whom he had performed intraperitoneal chemotherapy had been suffering from
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- pseudomyxoma. The second is that had the chest x-rays or CAT scans indicated lung metastases, radical debulking surgery would have been inappropriate. There was other medical evidence that the carcinoma from which Catherine suffered had produced pseudomyxoma and that in June 1996 x-rays showed the presence of metastases.
30 Mr Bruce Gray was the Professor of Surgery at RPH. He also gave evidence on behalf of the appellant. He had seen Catherine in 1996 and had been on the verge of operating to debulk the tumour and prepare her for intraperitoneal hyperthermic chemotherapy when the condition deteriorated to a point where the treatment became impossible. In a report in September 1996 he said the assertion that the treatment she received from Dr Loggie, namely surgery incorporated with intraperitoneal Mytomycin C, had been available at RPH was in substance correct. He also conceded that nothing of that nature had been performed on a patient with pseudomyxoma. He was not as concerned as was Mr Archer with the presence of metastases although that would have "moderated any enthusiasm" he might have had. In cross-examination he agreed that the Loggie treatment and the treatment then on offer at RPH were different.
31 Professor Neville Hacker was called by the respondent. Professor Hacker, who is an experienced gynaecological oncologist in practice in New South Wales, said he had been familiar with the form of treatment under discussion when he was in the United States, that apparently being between about 1980 and 1986. He thought the key to the treatment performed by Dr Loggie was probably the radical debulking surgery, whilst the hyperthermia represented the more experimental component. In his expert report, which went into evidence, he proffered the view that Dr Loggie's method was not recognised in Australia as an available form of treatment at the relevant time. It was experimental and unproven and could only, as an experimental treatment, have been available after a pilot study and an analysis of the results of such a study. He also said it was not being studied or performed at RPH or elsewhere in Australia at the time. Further, it was not appropriate in Catherine's case, was unlikely to provide her with any long-term benefit and was different to the treatment then available at RPH.
32 Professor Hacker said that it was his view that intraperitoneal therapy had not been shown to be of benefit for patients suffering from pseudomyxoma. He agreed with the reluctance expressed by Mr Archer to undertake radical surgery when lung metastases were present. Professor Hacker was asked to comment as to whether the respondent should have been expected to recommend or mention that treatment to
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- Catherine. He repeated his view that there was no equivalent treatment available and then said:
"The practice of surfing the Net so to speak, is becoming fairly common in medical practice these days, particularly for younger patients. When standard approaches have been tried and failed, it's usual to look for experimental approaches and there are many experimental approaches available, particularly in the United States with experimental drugs and, in this case, radical surgery plus a novel approach to administering chemotherapy plus heat. So I can understand from the patient's point of view and on reading the correspondence from Dr Loggie, it did sound fairly encouraging and if I was the parent or if I was the patient, I would have felt reasonably encouraged by this but I think as a medical adviser the realities were quite different to the rather encouraging response that was received and also the individual patient, as I understand it, from reading the reports - the individual patient did not have disease that lent itself to this aggressive debulking procedure. There was a tumour, as I understand it, fixed to the pelvic side wall, there was a tumour invading the vagina and these are circumstances that just don't lend themselves to this type of approach."
The Trial Judge's Findings
34 The trial Judge first considered whether, in the circumstances, the respondent owed a duty of care to the appellant. It must be borne in mind that there was no allegation of breach of a duty of care to Catherine. Rather, it was contended that "there was a relation of confidence or trust between the [appellant] on the one hand and the [respondent] on the other hand and the [respondent] owed a duty of care to [the appellant] in any dealings between them concerning the proposed treatment or alternative forms of treatment of Catherine's tumour or related treatment".
35 His Honour concluded that the law did impose on the respondent a duty of care to the appellant in relation to the November 1995 consultation. He said that it was not in dispute that the discussions between Catherine and the respondent in September and November 1995
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- took place in circumstances where there was a relationship of doctor and patient between the respondent and Catherine. In those circumstances the respondent owed to Catherine a duty to exercise reasonable care and skill in the provision of any professional advice. A failure to discharge that duty, in the course of the November 1995 discussion, was capable of causing economic loss to the appellant and the deceased as the parents of Catherine. This was so because Catherine was single, apparently residing with them and not in a position to earn her own living. His Honour noted that the appellant and the deceased were plainly interested in matters which concerned Catherine's treatment and it was reasonably foreseeable that they would be interested in the cost of medical treatment.
36 In other words in November 1995 it was not merely remote and fanciful that if negligent advice was given to Catherine, which resulted in an unnecessary expense being incurred, the loss would or might fall on Catherine's parents. The trial Judge relied on the same circumstances in concluding that there was sufficient proximity between the appellant, the deceased and the respondent. His Honour then went on to consider the extent of the duty owed to the appellant. He said:
"In my view, in the circumstances here, any duty owed to the [appellant] and the deceased was at most coextensive with that owed to Catherine, his patient, and the [respondent] could not be said to have owed any additional duty to provide advice or information to the [appellant] or the deceased beyond that given to Catherine in the purported discharge of the [respondent's] professional obligations.
…………….
It follows that the reasonableness of any advice or information provided, or of any allegation as to the non-provision of advice or information, must be judged on the basis that such were statements made, or not made, by a doctor to a patient.
In other words, the question was and remains one whether Catherine, the patient, ought to have been told something by the defendant, her doctor."
37 However, the trial Judge went on to find that there was no relevant breach of the duty of care. His Honour found that as at September and November 1995 the respondent was not aware that at RPH from the middle of 1994 some terminally ill bowel cancer patients had been treated with intraperitoneal Mytomycin C administered through a catheter,
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- pursuant to a protocol which permitted it as part of a study. There was no breach of duty to Catherine in not disclosing that information because the respondent was not aware of it and there was nothing remarkable about the absence of awareness. The real question, his Honour said, was whether the respondent should have made inquiries of RPH to see whether any treatment of the kind was available. He answered that question in the negative. He said that the appellant's case had been brought on the basis that at the November 1995 consultation the respondent told Catherine the treatment that Dr Loggie could provide was not available in Australia, and the claimed obligation to enquire is said to flow from that. There was a finding that the appellant had failed to make good that factual allegation and, accordingly, the basis for any such obligation fell away.
38 However, his Honour went on to consider the question, in the context of the conversation that he found to have occurred. The respondent did not consider that the form of treatment was beneficial, and did not consider Catherine was a suitable candidate for it. There was an express finding that the respondent was entitled to hold those views. From a therapeutic point of view there was therefore no reason why the respondent would need to make enquiries as to the availability of the treatment in Perth. His Honour found that the respondent, in the discharge of his duty as a medical practitioner to Catherine was not obliged to make such an enquiry. The purpose would have been to see if there was some way that the expense of treatment that the patient had herself proposed, and intended to obtain from another medical practitioner, might be reduced. This had to be seen against the background that the respondent had not been asked as to the availability of the treatment in Perth and there had been no discussion as to cost. The trial Judge said: "To impose such a duty would be extremely onerous and productive of great uncertainty as to the extent of a medical practitioner's duty of care to his patient."
39 The trial Judge then proceeded to consider the issue of causation. He said that by November 1995 the respondent had, for all practical purposes, ceased to be Catherine's medical attendant. Having obtained information from Dr Loggie, Catherine was determined to make the trip to the United States. The loan necessary to finance the trip had been applied for and approved before the November consultation. The real reason for the November consultation was to garner support for the application under the act of grace scheme. His Honour said:
"At the November 1995 consultation, and after the [respondent] had informed Catherine that he did not consider she would be
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- suitable for the Loggie treatment, which was in any event experimental and unproven, Catherine had not gone away to consider that advice but had forthwith sought an act of grace letter from the [respondent], and was "very insistent" that the [respondent] complete such a letter for her.
Advice from the[respondent], or an absence of it, did not in my view play any meaningful role in Catherine's decision to travel to the United States and to seek treatment from Dr Loggie."
40 His Honour also noted that had Catherine spoken to Mr Archer at the time, the information "would have been necessarily hedged about with cautions" and she would have been told that the RPH treatment was not the same as the Loggie method. Additionally, his Honour said:
"In the circumstances here I do not consider, however, that any evidentiary onus would have ended with the defendant and I am not persuaded that Catherine or her family would have abandoned the plans already made to travel urgently to the United States for Catherine to receive medical treatment from Dr Loggie. … The claim would also fail for that reason."
The Grounds of Appeal and the Notice of Contention
41 There are two grounds of appeal. First, the trial Judge erred in law and in fact in not finding that the respondent had breached the duty of care. The particulars in support of this ground are voluminous but I think they come down to the proposition encapsulated in par 1(g):
"in view of the respondent's specialist knowledge and access to treatment/hospital information, and in the circumstances where the respondent was being asked about the availability of experimental treatment, the dire condition of Catherine and the dangers associated with her travelling overseas, in choosing to respond to that request and provide all advice/information the respondent was under a duty to inform the appellant (and Catherine) about any experimental treatment that the respondent knew or should have known was available locally (whether or not he would have recommended that Catherine undergo the treatment)."
42 The second ground of appeal is that the trial Judge erred in law and in fact in finding that the appellant failed to establish that the trip to the
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- United States for treatment from Dr Loggie resulted from any negligent statement, act or omission on the part of the respondent. Again, there are many particulars supporting the ground but they come down to a general challenge to the basis of the trial Judge's conclusion.
43 The respondent filed a notice of contention. It says that the conclusion that there was no breach of a duty of care could be supported on the basis that the scope of the duty can not and did not extend to the giving of advice on how to pursue a form of treatment elsewhere which had been expressly advised against.
Was There a Breach of the Duty of Care?
44 At the hearing of the appeal the appellant did not seek to challenge the trial Judge's finding that the treatment offered by Dr Loggie was experimental and was not available as standard treatment. It was accepted that the respondent had advised Catherine and her parents against having the Loggie treatment and the appellant did not seek to say that the advice in that regard was negligent. Nor did the appellant challenge the finding that what would have or could have been offered at RPH in September or November 1995 was different from the treatment that was contemplated by Dr Loggie.
45 Counsel put the case in this way. The respondent, a specialist oncologist, had performed chemotherapy treatment for Catherine but it had not worked. In September 1995 he told her that there was no further treatment he could offer. They should reflect on the situation and come back to see him to discuss things at a later time. Catherine and her parents then discovered the Loggie treatment and were told by Dr Loggie that Catherine was a suitable candidate for the type of procedure that he was performing. They were therefore given some hope. It is against this background that the November 1995 consultation took place.
46 Counsel submitted that it was wrong to concentrate on whether the type of treatment then being offered at RPH was or was not the same as that which Dr Loggie was performing. Even though the primary purpose of the visit by Catherine and her father to the respondent in November 1995 was to obtain from him a letter in support of the act of grace application it was encumbent, counsel submitted, on the respondent to make inquiries about what treatment was available locally.
47 It must be borne in mind that the question here is not a medical one. There is no issue as to whether the respondent was right or wrong in his
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- assessment that the Loggie treatment would not assist Catherine's condition. The point at issue is a financial one: was the respondent under an obligation to discover and then tell Catherine and her parents that there was a similar, but lesser, form of treatment available in Perth so as to give them the opportunity to avoid incurring the expenses associated with the trip to the United States? At that stage, of course, the causation issue also arises and in a case such as this it is not easy to divorce the considerations of breach of duty and causation.
48 There are, I think, some serious obstacles that stand in the way of the appellant making good these assertions. The simple fact is, on the unchallenged findings of the trial Judge, that the treatment available at RPH was quite different from that which Dr Loggie was performing. As I understand the evidence, the debulking of the tumour was an essential feature of Dr Loggie's method because it enhanced the prospect of the chemical agents acting on the affected cells or tissue. The administration of the chemical agents under heat and within the membrane surrounding the abdominal cavity was another essential feature. What is clear is that aggressive or radical debulking was not part of the experience of Mr Archer, nor was the use of heat during the intraperitoneal application of the chemical agents. Accordingly, the appellant could not have succeeded had her case been (which I accept it was not) that RPH was offering the same treatment as Dr Loggie. But I doubt whether it could be said that the treatment was "similar", which is the basis on which the case (or at least the appeal) was advanced.
49 By the end of 1995 Mr Archer was a general surgeon of some two years post-qualification experience. He had not used the heat assisted treatment and nor had he performed the procedure on a person with Catherine's condition. Professor Gray said that he had "some academic interest in intraperitoneal chemotherapy and had treated a couple of patients". On the other hand, the investigations conducted by Catherine and her family were centred on the work being done by a surgeon with a reputation in the field and in a centre that specialised in such research. There is a wealth of difference between the American experience and the stage to which the RPH activities had developed at the time. For these reasons, I have difficulty in accepting the submission that concentration on the similarities between the RPH treatment and the Loggie method is misplaced.
50 But counsel for the appellant submitted that there was a vital factor in this case which conditioned the duty of care. When she came to see him, Catherine was dying. Her life expectancy had fallen to be measured
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- in days. There was doubt as to whether she would survive the aeroplane flight. In these circumstances even though she may have made up her mind to go to the United States and presented that fact to the respondent as a fait accompli it was encumbent on him to make inquiries to see if there was similar treatment available locally so as to avoid the risks associated with the flight. In this case it was not an onerous or unreasonable obligation because there were only about ten oncologists operating in Perth and four institutions in which they were situated. The respondent worked in two of those institutions and knew what experimental work was being carried out at them. So he would only have been required to make telephone calls to two institutions and a handful of practitioners to ascertain what was available.
51 I acknowledge that in this case the extent of the appropriate inquiries may not have been great. But I am not sure that this necessarily answers the question of principle. Catherine and her father came to see the respondent not to obtain treatment but to get a letter of support for a course of conduct on which Catherine was determined to embark. The respondent advised against the proposed course of conduct but nonetheless agreed to write a letter of support. It is difficult to see why, in those circumstances, he was under an obligation to inquire as to whether alternative treatment, having some of the characteristics of the proposed treatment but in essence materially different from it, was available locally. He was faced with a situation where the parents wanted (quite naturally) to do the very best they could for their child and they were prepared to push beyond accepted techniques and try experimental procedures which were only available overseas. They were not seeking advice. The advice they did receive from the respondent was negative.
52 The respondent had made it clear to Catherine and her parents in September that he had reached the limit of his powers in the sense that he had exhausted all avenues known to him. I do not think he was under a duty then to inquire whether there were other avenues that Catherine could pursue locally. It might have been different had, for example, Catherine asked the respondent whether anything had changed since September. But there is no evidence that any such question was posed.
53 In his evidence the respondent conceded that had he known, for example, that the Loggie treatment was available at Sir Charles Gairdner Hospital (one of the institutions at which he worked) he would have told Catherine it was worthwhile seeking an opinion even if she had already made arrangements to go to the United States. But that is hypothetical. The relevant findings, which are not challenged, are that the Loggie
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- treatment was not available in this State and that he did not know of any similar programmes. Regard must also be had to the evidence of Mr Archer and Professor Gray that the work that they had been conducting was not the subject of any publicity or notification, either in professional journals or elsewhere. During the trial evidence was led that the experimental work then being carried out had not been referred to the ethics committee that considers research and experimental projects. Indeed, there was some question as to whether work of that nature needed to go to the committee. Accordingly, there was nothing to suggest that the respondent should have known about Mr Archer's work. Both Mr Archer and Professor Hacker said that it would not have been reasonable to expect a medical oncologist outside RPH to have had specific knowledge of the "preliminary interest" of Mr Archer and Professor Gray in the area.
54 In these circumstances, I do not think there was a breach of the duty of care that was found to have existed and I have not been persuaded that the trial Judge erred in the way that he approached the matter. Ground 1 has not been made out.
The Causation Argument
55 This conclusion makes it strictly unnecessary to consider the causation issue. For the sake of completeness, I will do so very briefly. As I have already said, the circumstances of this case make it difficult to distinguish between breach of duty and causation. Much of the evidence and reasoning on one issue applies also to the other.
56 By November 1995 Catherine and her parents had discovered the Loggie treatment through their own resources. They had communicated directly with Dr Loggie and had received from him encouraging advice concerning the proposed treatment. It is not surprising that, as parents, the appellant and the deceased were prepared to do whatever was necessary to prolong their daughter's life and to expend whatever moneys were necessary in the process. As the trial Judge found, the real reason for the consultation in November was to enlist his support for an act of grace payment. By that time they had already applied for, and obtained approval for, a loan to finance the trip and the medical expenses that would be incurred.
57 The evidence was that the appellant and the deceased had only limited financial capacity and that by this time the deceased was himself unwell. I think it is correct to say there was no evidence that the estimated cost of the trip or the financial resources of the family were raised with
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- the respondent. The respondent denied the suggestion that the cost of the trip had been raised with him and I think it must follow that the trial Judge accepted his evidence. Certainly, the prospect of the family obtaining an act of grace payment was in contemplation but, that aside, financial matters were not to the fore in the discussion.
58 In those circumstances, I do not think there is reason to doubt the trial Judge's conclusion that such negligent statements, acts or omissions as could be sheeted home to the respondent played no meaningful role in Catherine's decision to travel to the United States. In the circumstances of this case, I do not believe that an evidentiary onus shifted to the respondent. Ground 2 also fails.
The Notice of Contention
59 In the notice of contention the respondent asserts that the duty of care can not and did not extend to giving advice on how to pursue a form of treatment elsewhere which had been expressly advised against. The respondent also contends that there is no authority at law to support the proposition that a professional adviser owes a duty of care to advise how to carry out that which has been advised against.
60 As to the first part, it will be clear from these reasons that I accept the contention that the duty of care "did not" extend to giving advice on how to pursue (in this State) treatment which had been expressly advised against. In this respect the notice of contention does not take the case beyond what was necessary to dispose of the appeal. The other aspect of the first part, namely that the duty of care "can not" so extend, and the second part of the contention have implicit within them a proposition of law that a duty of care could not arise under these circumstances.
61 At the hearing of the appeal, counsel for the respondent was not called upon and, in his address, counsel for the appellant did not address these issues specifically. Accordingly, the parties have not had the opportunity to develop their respective arguments in relation to the notice of contention. I would prefer to base the decision on the factual matters raised in the grounds of appeal. The broader legal issues raised by the notice of contention are best left to another day.
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Conclusion
62 It is for these reasons that at the end of the hearing I joined in the orders that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal.
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