McCann v Buck - [2000] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: McCANN & ANOR -v- BUCK [2000] WADC 81

CORAM: MACKNAY DCJ

HEARD: 14-17 DECEMBER 1999

DELIVERED : 31 MARCH 2000

FILE NO/S: CIV 4278 of 1996

BETWEEN: BRENDA PATRICIA McCANN
JAMES McCANN
Plaintiffs
AND
MARTIN BUCK
Defendant

Catchwords:

Torts - Negligence - General matters - Negligent misstatement - Duty of care - Whether medical practitioner owed duty of care to parents of patient to prevent alleged unnecessary expense of treatment to be funded by parents - Causation - Turns on own facts

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiffs: Mr T Lampropoulos
Defendant: Mr N W McKerracher QC

Solicitors:

Plaintiffs: Hoffmans
Defendant: Clayton Utz

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

BT v Oei (1999) NSW SC 1082
Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529
Chappel v Hart (1998) 72 ALJR 1344
Crimmins v Stevedoring Industry Finance Committee (2000) 74 ALJR 1
F v F (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
Perre v Apand Pty Ltd (1999) 164 ALR 606
Powell v Boldaz (1998) Lloyd's Rep Med 116
Rogers v Whitaker (1992) 175 CLR 479
Romeo v Conservation Commission NT (1998) 72 ALJR 208

Case(s) also cited:

Bryan v Maloney (1995) 182 CLR 609
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Hillman v Black & Ors (1997) A Tort Rep 81-419
Jaensch v Coffey (1984) 155 CLR 549
L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) (1981) 150 CLR 225
Mutual Life v Evatt (1968) 122 CLR 556
San Sebastian Pty Ltd v Minister Administering Environmental Planning & Assessments Act 1979 (1986) 162 CLR 340

MACKNAY DCJ:

Introduction

Brenda Patricia McCann (the first plaintiff) sues as firstnamed plaintiff on her own behalf, and as secondnamed plaintiff in a representative capacity on behalf of the estate of her late husband James McCann (the deceased), who died on 23 November 1997, for damages said to have been suffered as a result of the alleged negligence of the defendant, a medical practitioner in specialist practice as an oncologist.
Catherine McCann (Catherine), who was born on 23 August 1964, and who died on 19 July 1996, was the daughter of the first plaintiff and the deceased, and for a period a patient of the defendant.
The allegation of negligence made against the defendant arises from a consultation between Catherine and the defendant in September 1995, at which the first plaintiff was also present, when Catherine was told the defendant was unable to offer any further treatment for the cancer from which Catherine then suffered, a discussion between Catherine and the defendant in November 1995, at which the deceased was present, when a question of the efficacy of further treatment being sought by Catherine from Associate Professor Brian Loggie (Dr Loggie) at the Bowman Gray School of Medicine in Winston-Salem NC in the United States was raised by Catherine, and from an open letter dated 13 November 1995 written by the defendant which stated that Catherine ought be given "favourable consideration for an Act of Grace grant" in relation to the expenses associated with the cost of seeking treatment from Dr Loggie, the defendant stating inter alia that at "the present time there is no current chemotherapy (sic) available in Australia to treat (Catherine's) problem …".
A short time later Catherine travelled to the United States for treatment by Dr Loggie, the expenses associated with that being met by the first plaintiff and the deceased from the proceeds of a bank loan taken out over their house for the purpose.
The first plaintiff alleges that contrary to the statement by the defendant, treatment of the kind provided by Dr Loggie was available in Australia, and in fact at Royal Perth Hospital, and that had Catherine, the first plaintiff and the deceased been aware of that then Catherine would not have travelled to the United States and the first plaintiff and the deceased would not have incurred the expense of that travel and the treatment there.
It is further said that had the defendant made enquiry of inter alia Royal Perth Hospital then he would not have made the statement, and that it was negligent of him not to make that enquiry in all the circumstances.
The defendant says 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, and that there was no discussion as to whether the treatment was available in Western Australia. The defendant says further that the 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 first plaintiff and the deceased, in ignoring the advice given to them by the defendant.
The quantum of the plaintiffs' claim was agreed in the sum of $108,302.80 including interest to 14 December 1999, with an agreed daily accrual thereafter.

History

The first plaintiff and the deceased were married in 1963, and Catherine was apparently one of four children, three of whom survive.
Until 1994 Catherine enjoyed robust good health and was very involved in sport, both as a participant and through academic study.
On 22 June 1994 Catherine, however, presented, on referral from her general practitioner, Dr Som, to Dr Ian Hammond, a gynaecological oncologist, and two days later was admitted to hospital with possible ovarian cancer.
Dr Hammond carried out surgery on Catherine on 27 June 1994, and said he found, inter alia, ascites and "really bulky disease throughout the abdominal peritoneal cavity".
The surgical aim in those circumstances was to debulk as much as possible, Dr Hammond said, and as a result he performed a procedure which included a modified radical hysterectomy and a "sub‑optimal" debulking procedure.
The latter was sub‑optimal, Dr Hammond said, as deposits larger than 1cm in diameter had been left, particularly under the diaphragm, under the bowel, and in other areas.
Following the surgery Dr Hammond said pathological results indicated that Catherine had a "primary so‑called high grade borderline tumour of the appendix", and a raised CEA level was then noted, which fitted that diagnosis.
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 defendant, Dr Hammond said, although he continued to receive reports on Catherine's progress and to discuss the matter with the defendant.
Dr Hammond said the defendant had been disinclined to rush into palliative chemotherapy on Catherine being referred to him, and that was a standard approach when a patient was relatively well, and had been discussed in detail with the defendant.
The defendant said that Catherine attended on him as a patient, with appendiceal cancer, in about July 1994, and his initial advice had been to observe the situation as that type of cancer could be very slow growing, and then if the tumour progressed, to consider further treatment.
Catherine was then seen every month or second month to assess progression, the defendant said, and periodic ultrasound tests and CAT scans were done.
As a consequence of the tests it was ascertained the tumour was moving steadily, the defendant said, and in 1995 he recommended a trial of chemotherapy to Catherine.
The chemotherapy treatment on being carried out seemed, however, to have little if any effect, the defendant said, and a change to another chemical agent, Mytomycin C, was recommended by the defendant, and duly commenced. That treatment, however, also proved ineffective.
Earlier, in April 1995, Dr Hammond had examined Catherine again and found, he said, that she had, inter alia, a distended abdomen, enlarged lymph nodes compatible with metastatic disease, and a "massive pelvic tumour which was invading the vagina", and which was fixed to the side wall of the pelvis.
At that time Dr Hammond considered, given Catherine's condition, that she was not a suitable candidate for surgery, he said, and he had then discussed that with Catherine and the defendant, as well as that it was then appropriate for chemotherapy to be commenced.
Dr Hammond said that surgery would only have been of benefit if the tumour was able to be debulked to an optimal residual state. However, at the time of his review it would have been impossible to resect the pelvic tumour irrespective of whether or not it was possible to remove all other tumour.
Catherine had been disappointed on being given that advice, Dr Hammond said, and was distressed as she was unwell, and as a result of his concern about her psychological status he arranged for an urgent appointment for Catherine with a clinical psychologist, Ms Rosemary Hagan.
The defendant said that he informed Catherine that the Mytomycin C was ineffective in holding the progression of her disease when she arrived to commence her third four weekly course of the Mytomycin C. That was in September 1995.
In relation to Catherine's condition at that time the defendant said:
"She was clearly losing her physical integrity and she was getting weaker and it was apparent to me that she was having a more difficult time coping with her chemotherapy in that last two courses of Mitomycin than she'd had previously so that her baseline general condition had dropped back a bit and I could see that she was weakening in front of me and I was suspicious that that was an indication that the disease was still progressing and as I mentioned earlier, it was confirmed by this nodule that I'd been keeping a watch on in her abdomen which was clearly getting larger and I felt that given her more weakened condition and the fact that the chemotherapy was not stopping the progression of her disease that it was time to stop it."
The defendant was then aware that Catherine's tumour apparently extended to the side wall of the pelvis and into the vagina, and that Dr Hammond did not consider in those circumstances that radical removal of the tumour was possible, or that Catherine was a candidate for further surgery, he said.
The first plaintiff said that apart from Catherine, she and her younger daughter Anne Louise, who was then 11 years in age, met with the defendant in September 1995.
At that meeting the defendant had, the first plaintiff said, with his feet on the desk and his hands behind his head, said that there was nothing more that he could do for Catherine, and on being asked by the first plaintiff whether assistance would be available in an area of greater population, said that the world was a big place, whilst on reference being made to the existence of communications systems by the first plaintiff, answered that would mean "a lot of very expensive phone calls". The consultation ended at that point, the first plaintiff said.
The defendant said that the consultation took place at his office at Mounts Bay Road and he had a reasonable recollection of it but did not recall Anne Louise being in the room.
In relation to the first plaintiff's claim as to his deportment when informing Catherine that nothing further could be done, the defendant said that was not the way that he would deliver bad news and he did not practice in that way.
Catherine was, the defendant said, quite devastated by his advice. As to matters then discussed, the defendant 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 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."
As to his knowledge of the existence of any other form of acceptable treatment for Catherine at that time, the defendant 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."
The defendant later 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.
Following the consultation the first plaintiff said the following occurred:
"At that time my husband in particular, he worked for the Ministry of Sport and Recreation and he was very open to new things happening and he was quite interested in the Internet and development on the Internet. He had a friend in Perth that was also interested and I had a friend in Albany that was also interested. We did not own a computer at this time. They said, 'Look, if you need to find out information, we'll put it out over the Internet'. So we actually put a call, just literally a call for help, that anyone that knew anything about this disease, could they help us. We actually got a lot of replies. They came mainly from people suffering the same illness and they were very hopeful. A lot of these people had been ill for some time. What they told us was that this disease was like a velcro and that the velcro could be chipped off. It was risky, it was not without its problems but certainly it could be assisted and not to give up hope. Several of them - I think we got only one from Europe and the rest were from America. They actually asked us to contact somebody called Dr (Sugarbaker).
Several of them mentioned Dr (Sugarbaker) but we got one very interesting email message from a Dr Savage at the Bowman Gray Medical Centre and he said, 'We have got a brilliant man here who actually is a Canadian'. It was in North Carolina, the Bowman Gray Centre. 'He has worked with Dr (Sugarbaker), he's developing wonderful things. He never has time to read his email. You're going to have to fax him. This is his fax number.' That's how we got in touch with Dr Loggie."
Catherine had also gone to Sydney, and whilst there had attended Westmead Hospital, but with a negative result, the first plaintiff said.
Facsimile transmissions between the first plaintiff and the deceased and Dr Loggie form part of the exhibits.
On 11 October 1995 the first plaintiff and the deceased informed Dr Loggie:
"As we live in an area of very low population this type of cancer is practically unknown, I am seeking your help and advice in this matter. The case manager in our situation is Dr Darcy Smith. Dr Smith is very supportive of our efforts to seek assistance for our daughter and is willing to correspond, on a more technical level, with anyone who can offer us advice or help. We are prepared to travel, should the need arise, to seek further assistance."
Other information was also provided as to Catherine's condition.
On 12 October 1995 Dr Loggie responded, advising that his treatment involved a combination of "surgery with heated chemotherapy which is administered at the time of surgery". That had been successful in the eradication of malignant ascites from tumours such as Catherine had, Dr Loggie said, and provided "long term control over this in most cases". The work had been going on for in excess of three and one half years, he said, and there was not yet long term follow up available, although there were intermediate survival figures as well as outcome measures.
Dr Loggie further said:
"Based on the small amount of information that you have provided, it sounds to me as if your daughter is potentially an ideal candidate for this form of treatment."
Further discussion was invited.
Dr Loggie then wrote, on 19 October 1995, attaching copies of recent abstracts in the medical literature in relation to his work, and said:
"Basically, what these demonstrate is that compared to the anticipated survivorship, particularly with less favourable malignancies than your daughter, we are seeing a tremendously enhanced survival compared to that in the literature."
The first plaintiff was asked whether there had been a return to see the defendant after that information became available and said:
"Yes, we did. We had a lot of trust in Dr Buck. I mean, Dr Buck to us was the person in Perth that knew the most about this disease. His behaviour on the day in September - as we drove back - we actually put down to anxiety. Catherine had enormous trust in Dr Buck and she really did listen and trusted him. So when we found out this treatment was available, we had a family conference and talked it over and how we could get the money to go to America and things like that. Somebody else told us about the act of grace scheme because we had no idea of that either. We talked it over and decided that - we were told that - I spoke to a person in Canberra and she advised us how to go about filling in the forms because the forms are vast and she said, 'Your best chance of getting approval would be to go to the most eminent medical practitioner that you know, the most eminent person that would have the knowledge to be able to say yea or nay on this. The higher up the person is, the more chance you've got of being approved.' So who else but Dr Buck could we go to? I mean, he was the person that we had, that had treated Catherine, that, you know, we had asked for help and obviously he knew far more than we did or anybody else that we knew."
An appointment was made to see the defendant, the first plaintiff said, and it was decided that an application would be made for an act of grace payment, and that as Catherine had no money the "family decided that we would mortgage our house and we would actually finance the whole treatment as far as we could".
It appears that an application for finance to the Bank of Melbourne was then made on 20 October 1995, that application being subsequently approved on 9 November 1995.
A few days later, it would appear on 13 November 1995, the deceased and Catherine attended on the defendant.
Neither the deceased nor Catherine was of course available to give evidence at the trial. However, in an affidavit sworn on 9 April 1997 the deceased deposed that he had informed the defendant 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 defendant 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 defendant had advised he and Catherine that the treatment in question was being evaluated but the defendant 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 defendant had wished Catherine "good luck" in relation to the treatment.
The defendant recalled 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 defendant 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 defendant 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, 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."
As to what Catherine was then told, the defendant stated:
"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."
The defendant further said:
"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."
As to his response, the defendant also said:
"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."
No financial cost had been mentioned to him, either directly or obliquely, the defendant said.
The defendant said in relation to the request for a letter for an act of grace payment:
"Catherine was very insistent that I complete the letter for an act of grace. I told her that I did not think that it would be approved because it was an experimental treatment and I was familiar with some of the requirements for the act of grace, but she was a very insistent young lady and I saw my role at this point in her illness to be supportive and I agreed to provide a letter for her to help support her application for the act of grace payment. In other cases where I have been more enthusiastic about an act of grace payment being approved I have certainly put more references and completed a longer and more - more of a report than a short letter."
The defendant said that he was fairly sure that the letter, which as stated is dated 13 November 1995, was prepared on the same day that he had seen Catherine and the deceased.
The defendant had not at that time been aware of anyone in Australia who was carrying out Dr Loggie's form of treatment, or of any work in that general area being done at Royal Perth Hospital, he said.
As to the latter the defendant was asked:
"Had you been aware of that work would you have made any recommendation to Catherine to pursue that form of treatment? ---It would seem from what I have heard today that Dr Archer was treating some patients with intraperitoneal chemotherapy which is basically the insertion of chemotherapy into the abdominal cavity and the chemotherapy drugs that he had used were both the drugs that Catherine had had intravenously and it would have been my opinion at the time that given the fact that she was already resistant to these drugs by the intravenous form that instilling them in her abdomen in an intraperitoneal form would be very unlikely to cause or be of any great benefit.
Would you have taken any decision like that without reference to Dr Hammond?---If it was a question of surgery and it would have been to proceed with the intraperitoneal chemotherapy it would have been a matter for him to decide on whether he thought that operation was appropriate."
The defendant said that he understood from the material shown to him by Catherine that Dr Loggie's treatment had consisted of "radical extensive surgery, intraperitoneal Mytomycin C plus hyperthermias".
As to his view of the consultation generally, the defendant said:
"On the consultation in November Catherine presented with me the information that she obtained from Dr Loggie and she asked my opinion on that treatment, which I gave. She did not ask me whether she could get that treatment anywhere else. She was committed to go and see Dr Loggie."
Catherine and the first plaintiff then travelled to the United States, and Catherine underwent treatment from Dr Loggie at the Bowman Gray Hospital.
The surgical operation took place on 21 November 1995, the first plaintiff thought, and 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.
Dr Loggie's operative note, a hospital discharge summary, and an office note from Dr Loggie are all exhibits, as is a letter from Dr Loggie to the Commonwealth Department of Human Services and Health in relation to an apparent refusal by that department of financial assistance for the expenses associated with Catherine's treatment.
According to Dr Loggie's operative note, the surgical procedure was carried out on 22 November 1995, and involved:
"Extensive debulking of abdominal tumor and drainage of malignant ascites, completion omentectomy splenectomy, repair of liver laceration, repair of sigmoid laceration, intraperitoneal heated chemotherapy with Mitomycin."
The surgery was said to have started at 7.50am and to have been completed at 11.30pm.
Dr Loggie noted, inter alia, that "(d)espite very, very extensive debulking, significant tumor deposits were left … ".
In the office note of 5 December 1995 Dr Loggie noted that a chest x‑ray had been done on that day and on review he had noticed there were several small nodules in the left lower lung field, at least one of which had been noted on Catherine's pre‑operative chest x‑ray. Dr Loggie also recorded that the hospital did not have prior chest x‑rays so he did not have any way of knowing whether those were new and represented metastatic disease as opposed to granulomatous change.

Royal Perth Hospital treatment

Two medical practitioners associated with the Royal Perth Hospital work were called on behalf of the plaintiffs.
The first, Mr Stephen Archer, qualified as a general surgeon in 1994, and earlier, in 1993, spent 4/5 days at Dr Sugarbaker's institute as he had an interest in the area through some previous experimental work on animals with intraperitoneal chemotherapy.
Mr Archer also became a consultant at Royal Perth Hospital in 1994.
In late June 1996 he was first involved in the treatment of Catherine.
In September that year Mr Archer provided a report to the plaintiffs' solicitors in which he stated:
"I have been treating patients at Royal Perth Hospital with intra‑peritoneal chemotherapy, including Mitomycin C, since approximately June 1994. To date, we have not combined chemotherapy with hyperthermia at the time of operation. The aim of adding the hyperthermia or heating is that there is evidence that this enhances the effectiveness of the chemotherapy. The combination of heating and chemotherapy has been used specifically for tumours such as that affecting Catherine McCann. During 1992 and 1993, I worked in two cancer centres in the United States where I gained experience in intra‑peritoneal chemotherapy and hyperthermia. For a number of reasons, we have not yet treated a patient with this combined therapy. However, the technique is fairly straight forward and could have easily been achieved with the facilities currently available at Royal Perth Hospital."
There was a protocol at Royal Perth Hospital at the time, Mr Archer said, it being for studies in relation to terminal bowel cancer patients, who were given chemotherapy through a catheter following surgery.
In evidence Mr Archer said he had probably over‑simplified his last statement in the report, and although "(t)echnically it’s a reasonable straight forward procedure to heat the drug and then administer it, but there are other issues concerning combining that with radical debulking surgery, etcetera, so technically yes".
In a subsequent report to the solicitors for the defendant of June 1997 Mr Archer stated:
"You refer to the specific treatment which Catherine McCann underwent in the United States. This involves extensive abdominal surgery together with administration of heated chemotherapy under anaesthesia at the completion of the surgical procedure. This treatment has not yet been carried out in Western Australia to my knowledge. The treatment is purely experimental at this stage and we have not as yet taken steps to introduce it in Western Australia. Therefore it can be said that at the time of Catherine McCann's illness this treatment was not being practiced and therefore was unavailable as standard practice in Western Australia. In addition, our preliminary interest in this area has not been advertised or presented at any meetings and therefore it would be unreasonable to expect a Medical Oncologist outside this hospital to have specific knowledge of its existence."
Mr Archer stated to the solicitors for the plaintiffs in September 1998 that he considered that Catherine would have been a suitable candidate for intraperitoneal hyperthermia and Mytomycin C, and had she presented to his department in 1995 he would have given consideration to that treatment, "pointing out that this treatment had never been used in Western Australia at that time".
In June 1999 the defendant provided a "minute of expert evidence" from another gynaecological oncologist, Professor Neville Hacker, and that subsequently became an exhibit.
In the minute Prof Hacker was said to have been of the view, inter alia, that Dr Loggie's treatment, which "consisted of radical debulking surgery followed by intra‑peritoneal perfusion with heated Mytomycin C", was not recognised in Australia as an available form of treatment at the relevant time, was experimental and unproven, could only as an experimental treatment have been available after a pilot study and an analysis of the results of such a study, and was not being studied and/or performed at Royal Perth Hospital 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 Royal Perth Hospital.
In August 1999 Mr Archer reported to the plaintiffs' solicitors that he agreed with most of the matters set out as Prof Hacker's opinion in the minute. Mr Archer further stated:
"I confirm that the treatment available at Royal Perth Hospital at that time (post-operative intra-peritoneal chemotherapy without hyperthermia or radical debulking) was different to the treatment being offered by Dr Loggie and, therefore, was not available at Royal Perth Hospital at that time."
Mr Archer provided another report in October 1999, on this occasion to the plaintiffs' solicitors. In that report Mr Archer said that on occasion a single treatment might be permitted by the hospital if it was intended that the treatment be extended to other patients, and that a reply to a request of that kind could usually be obtained within two weeks. The fact that intraperitoneal chemotherapy had been previously administered in a safe manner would have made ethical approval easier to obtain, Mr Archer stated.
In his report Mr Archer also pointed out that in November 1995 there had been little published on the use of intraperitoneal hyperthermic chemotherapy following radical debulking surgery, so that the safety of the procedure was unknown. In June 1996 Dr Sugarbaker had then published the "largest experience" with the relevant treatment and that had indicated an acceptable complication and mortality rate. Mr Archer said that after that publication he "felt comfortable about starting the treatment and in 1997 considered it reasonable to proceed" without further approval.
Finally, 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."
Mr Archer reiterated in evidence that had a patient with Catherine's condition presented at the hospital at the end of 1995 the patient would have been told inter alia that the doctors there had not then treated a patient with hyperthermia and intraperitoneal chemotherapy with or without radical debulking surgery, although they had had some experience with intraperitoneal chemotherapy in a range of intra‑abdominal malignancies, none of which had been pseudomyxoma.
As part of any staging investigation a chest x‑ray or CAT scan would also have been carried out, Mr Archer said, and if metastases to the lung was revealed that would have indicated the disease was at the aggressive end of the spectrum, although debulking might still have been done for symptom relief or, if there was a bowel blockage, the patient would have been told the treatment was purely palliative, to relieve local symptoms. Radical debulking in the presence of lung disease would have been "inappropriate", Mr Archer said.
As to the use of a protocol, when the first patients were treated at Royal Perth Hospital in 1997 with intraperitoneal hyperthermia and Mytomycin C, Mr Archer said that the existing protocol had been used and no new submission made, given the small number of patients and the 1996 literature of Dr Sugarbaker.
Dr Gray was also at Royal Perth Hospital at the material time, and then held positions as Professor of Surgery and Director of the Lyons Cancer Institute Inc.
On 3 June 1996 he wrote to Dr G van Hazel that he had that day seen Catherine, whom he believed would be a good candidate for further debulking and "IP" chemotherapy, although he said that Catherine was aware that all that could be achieved was palliation. There were several small nodules on the chest x‑ray, those apparently also being present late in the previous year in the US, and the doctor said he intended to review all of Catherine's films.
A Royal Perth Hospital x‑ray report of 27 June 1996 subsequently advised "(m)ultiple pulmonary metastases up to 1.5cm in diameter are seen throughout both lung fields".
In July 1996 Dr Gray further reported that it had been arranged for Catherine to come into the hospital for debulking of her tumour and for intraperitoneal hyperthermic chemotherapy, but about a week prior to that she had developed acute abdominal pain, and it subsequently appeared that there was a perforation of the colon with peritonitis. Despite treatment Catherine had been so unwell as a result of the peritonitis that active treatment to the tumour had not been possible and she had, shortly afterwards, died of progressive disease.
In September 1996 the solicitors for the plaintiffs advised Dr Gray that their understanding was that on Catherine's return to Perth from the US she had discovered that the treatment received from Dr Loggie, "namely surgery incorporated with intraperitoneal Mytomycin C", had been available at Royal Perth Hospital, and in response Dr Gray stated that the substance of that assertion was correct.
In December 1999 Dr Gray again reported to the plaintiffs' solicitors that he believed Catherine would have been suitable for "the type of treatment that could have been offered at Royal Perth Hospital" at the time of her departure for the US, although the hospital had not actively been seeking patients for that treatment, which was highly specialised with most of the experience being in the US and to a lesser extent in Japan.
Dr Gray said that it was a moot point as to whether ethics committee approval was required for the procedure and it was possible to treat "appropriate patients" outside a research protocol.
Dr Gray said in evidence that treatment might still have been offered to Catherine at the end of 1995 if she had presented then and if there was some spread of her disease to the lungs, although that would have "moderated any enthusiasm" they might have had.
The doctor was further asked:
"Just going back to what was on offer at the end of 1995, the debulking surgery with the intraperitoneal chemotherapy, if a colleague had telephoned you towards the end of 1995 and said, 'Look, I've got a patient who's looking to fly to the United States to have Dr Loggie's treatment. Do you have anything similar?' would you have told them about what you had on offer?---Yes. I think we'd have said that we had some academic interest in intraperitoneal chemotherapy and had treated, I think by that stage, a couple of patients and that it was an option. I would hasten to add that we're not the experts, that we're reading other people's literature in terms of clinical application of it and that there's no doubt that the expertise lies in the United States not in Perth. I think that will change in time but it hasn't changed yet. I don't know whether it's appropriate that I should sort of put that into focus. I know, for instance, in the United States that there are two groups and one is in Washington which is Paul (Sugarbaker's) group which I think is - that's where I gather Dr Loggie learnt his trade. I know that Dr (Sugarbaker) had and I don't know whether he still has drug approval to be the only centre which is reimbursed for the treatment of pseudomyxoma peritonei in the United States. So, I mean, it's highly specialised, extremely specialised. I haven't at that stage and still haven't actually ever treated anybody with pseudomyxoma peritonei so there have been other sorts of cancers that we have been treating."

In cross‑examination, it was then put to Dr Gray:
"And all those three features would be quite different from the procedure offered at Royal Perth Hospital at 95, wouldn't they?---Yes, they would. Yes, I think that's true. Largely because of the nature of the disease pseudomyxoma it spreads widely and if you're going to be able to treat it, it seems that this very radical debulking is a necessary part of it and that's different to the few people that we had treated prior to that time."
Finally, Dr Gray was asked:
"It follows from your description of the procedures experimental in Royal Perth Hospital that had Catherine come to see you, for example in late 1995, you would not have used an expression to her saying there was nothing about any part of this treatment which could be regarded as experimental?---Well, I wouldn't have been offering her what Loggie offered her. I mean, we would be doing debulking, taking back to the ward, putting the catheters in because that's all that had been done at that stage.
But they're really quite different treatments, aren't they?---They're different. They're different, yes."
Prof 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 .
The key to the treatment performed by Dr Loggie was probably the radical debulking surgery, whilst the hyperthermia represented the more experimental component, Prof Hacker said.
The length of the surgery on Catherine was very uncommon, he said, and Dr Loggie's treatment was in his view unproven in its efficacy, as well as being experimental, and was not recognised as an available form of treatment either in Australia or elsewhere.
Prof Hacker said that in his view the treatment was not available or being studied at Royal Perth Hospital or elsewhere in Australia in late 1995, and Mr Archer's interest in intraperitoneal therapy had not been combined with debulking surgery of the magnitude Dr Loggie then performed, nor with hyperthermia.
Catherine had suffered from well differentiated carcinoma which had produced a condition known as pseudomyxoma peritonei. That was a rare condition, Prof Hacker said, and there were less than 10 cases a year in New South Wales.
Prof Hacker said that it was his view that intraperitoneal therapy had not been shown to be of benefit for pseudomyxoma peritonei.
Further, Catherine's condition had been incurable, although some short term benefit might have been expected from further aggressive surgery, that being accompanied by a risk of mortality or morbidity.
The presence of lung metastases would have been a contra indication to the degree of radicality in the surgery actually performed on Catherine by Dr Loggie, the professor thought, as the treatment was designed to control the disease in the peritoneal cavity, so once it had spread beyond that there was no approach that could be used.
In a report of March 1999 Prof Hacker had expressed, inter alia, the view that the defendant should have sought an opinion about the feasibility of further surgery, from either Dr Hammond or a surgeon oncologist, and in evidence he said in relation to Dr Hammond's evidence of his discussions with the defendant, that that was the sort of consultation that he had had in mind.
In relation to Catherine, Prof Hacker said that he could not express a concluded opinion as to whether she ought to have undergone palliative surgery as he had not seen her.
As to Mr Archer's expressed reluctance to carry out very radical surgery, Prof Hacker stated:
"That would certainly accord with my experience. I mean, the real role, I think, for aggressive cyto-reductive surgery is in patients who have not been exposed to chemotherapy. So if you're going to be this aggressive, you need to do it up front before you have got chemo-resistant disease. This woman has failed two lots of chemotherapy and the idea was then to expose her to the same drugs again. I mean, debulking surgery theoretically facilitates ease of access of the chemotherapeutic drugs to the residual tumour, but it presupposes that you have got tumour that is sensitive to the chemotherapy. If you have already tumour that's resistant to the chemotherapy, then there's no real value in aggressive cyto-reduction or debulking."
Approval from a hospital ethics committee would ordinarily be required before treatment of the relevant kind could be undertaken, the doctor said, that being for patient protection, and with Dr Loggie's treatment he thought there had been a 5/6 per cent mortality rate and a morbidity rate of the order of 30 per cent.
In the light of Mr Archer's reports Prof Hacker did agree that it appeared that a treatment which included "some degree of surgery and intraperitoneal Mytomycin C" was available at Royal Perth Hospital at the end of 1995.
As to whether the defendant should have been expected to recommend or mention that treatment to Catherine, Prof Hacker, after repeating his view that there was no equivalent treatment available, 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."
Prof Hacker agreed with the view expressed by Mr Archer that it would not have been reasonable to expect a medical oncologist outside Royal Perth Hospital to have specific knowledge of the existence of their "preliminary interest" in the area.
Dr Darcy Smith, a former deputy medical director of King Edward Memorial Hospital, who at material times was in general practice in Albany, first saw Catherine in September 1995.
He said that at that time Catherine's will to live had been greater than anyone that he had ever known. Dr Smith had provided Catherine with a referral to Westmead Hospital and received a subsequent reply from a radiation oncologist, he said.
Between September and November 1995 Catherine's condition deteriorated dramatically, and in his opinion Catherine had been within days of death when she left for the United States, Dr Smith said.
On her return Catherine was in good spirits and looked well, and Dr Smith said he had no doubt that Dr Loggie's treatment had extended her life, he thought by eight months, as well as improving the quality of her life.
His view was that Catherine would have been a suitable candidate for further debulking surgery prior to going to the United States, Dr Smith said.

Duty of care

A medical practitioner will ordinarily be held to owe a duty of care to a person who is a patient of that practitioner:
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all ways in which a doctor is called upon to exercise his skill and judgment'; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case. It is of course necessary to give content to the duty in the given case.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill …": Rogers v Whitaker (1992) 175 CLR 479, 483 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.
As to the scope and content of the duty, the same Judges in Rogers referred, at 488, with subsequent express approval, to the approach of King CJ set out in F v F (1983) 33 SASR 189 at 194:
"The ultimate question, however, is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community."
Their Honours went on to say that:
"King CJ considered that the amount of information or advice which a careful and responsible doctor would disclose depended upon a complex of factors: the nature of the matter to be disclosed; the nature of treatment; the desire of the patient for information; the temperament and health of the patient; and the general surrounding circumstances."
Although the evidence led on behalf of the plaintiffs is consistent with the proposition that Catherine attended on the defendant in September 1995 and November 1995 as his patient, no allegation that the defendant breached a duty of care to Catherine is made.
Instead, the plaintiffs allege "there was a relation of confidence or trust between the first and second named plaintiffs on the one hand and the defendant on the other hand and the defendant owed a duty of care to (them) in any dealings between them concerning the proposed treatment or alternative forms of treatment of Catherine's tumour or related treatment".
It was then pleaded in the amended statement of claim that at the time of "giving the advice" at consultations in September 1995 and November 1995 the defendant knew or ought to have known the plaintiffs would rely on, and be induced to act on, the advice.
The advice in September 1995 was said to be that there was no chemotherapy available in Australia to treat Catherine's tumour, and that the defendant was unaware of the availability of treatment elsewhere in the world, whilst as stated, the advice in November 1995 was said to be that the treatment which could be performed by Dr Loggie was not available in Australia.
The plaintiffs then expressly plead that "(a)cting on the … advice, the first and second named plaintiffs arranged a bank loan and paid for Catherine to travel to the United States for treatment".
The defendant was said to have been negligent in giving "the said advice" in a number of ways, including by failure to advise that the treatment was available and could have been performed at Royal Perth Hospital, a failure to make adequate enquiries concerning the availability of alternative forms of treatment within the State, a failure to take reasonable care in advising the plaintiffs that the treatment was not available in Australia, a failure to make adequate enquiries concerning the availability of the treatment in Australia prior to completion of the act of grace letter and a failure to advise that Catherine should be referred to an oncologist who specialised in abdominal cancers, as it was more likely than not that such an oncologist would have been aware of the treatment available at Royal Perth Hospital.
The essence of the plaintiffs' claim, as appeared from the outline of submissions, is contained in the allegations that the defendant was aware that the first plaintiff and the deceased would incur the expense of sending Catherine to the United States for treatment if no treatment was available in Australia, and that it was clear that they relied on the defendant's knowledge and advice.
There was a duty of care owed, the plaintiffs say, and in the exercise of reasonable care the defendant should have "at least" enquired of Royal Perth Hospital and Queen Elizabeth II Medical Centre, as the two largest relevant institutions.
The case was therefore one of negligent misstatement, and the plaintiffs relied, counsel said in opening, on Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 or alternatively on Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529.
The plaintiffs referred to the decision of the NSW Supreme Court in BT v Oei (1999) NSW SC 1082, in which Bell J held that a doctor owed a duty of care to the sexual partner of a patient with HIV.
That was of course a case of personal injury, not economic loss.
Reference was also made to Crimmins v Stevedoring Industry Finance Committee (2000) 74 ALJR 1 and to Perre v Apand Pty Ltd (1999) 164 ALR 606.
Crimmins was a case of personal injury, albeit one which involved a consideration of when a duty was owed by a stevedoring authority to a waterside worker who was not an employee of the authority.
Perre was of course a case of pure economic loss, with a considerable diversity in the reasons of the seven members of the court, all of whom delivered judgments.
The defendant says that in circumstances where the Loggie treatment was not recognised, the defendant did not encourage it, was never asked whether there was similar treatment in Australia, and would not have been aware of that as he considered it was not of assistance, and where the first plaintiff and the deceased were non‑patient parents of an adult patient, no duty of care was owed by the defendant to the first plaintiff and the deceased.
The defendant also relies on the decision of the Court of Appeal in Powell v Boldaz (1998) Lloyd's Rep Med 116.
In that case the plaintiffs were parents of a child who had died at aged 10 years of Addison's disease, and they claimed damages for psychiatric injury and economic loss against the defendants, who were medical practitioners, apart from a health authority, for the claimed consequences of observing the suffering and death of their child after a failure by the defendants to diagnose the disease, as well as in respect of an alleged cover up after the child's death. The claims for damage in relation to the failure to diagnose were settled on the basis of an agreement to pay compensation. However, the claims based on the alleged cover up were persisted with, and were struck out. There was then an appeal to the Court of Appeal, which held that no duty of care was owed by the doctor defendants to the plaintiffs.
Stuart‑Smith LJ (with whom Morritt and Schiemann LJ agreed) stated (at 9):
"I propose to consider, first, whether a sufficient relationship of proximity existed. It must be appreciated that, prior to 17 April 1990, although the plaintiffs were patients of the defendants in the sense that they were on their register, the only patient who was seeking medical advice and treatment was Robert. It was to him that the defendants owed a duty of care. The discharge of that duty in the case of a young child will often involve giving advice and instruction to the parents so that they can administer the appropriate medication, observe relevant symptoms and seek further medical assistance if need be. In giving such advice, the doctor obviously owes a duty to be careful. But the duty is owed to the child, not to the parents. As Lord Diplock said in Sidaway v Bethlem Royal Hospital Governors (1985) 1 BMLR 132 at 147, [1985] 1 AC 871 at 890: 'a doctor's duty of care, whether he be general practitioner or consulting surgeon or physician, is owed to that patient and none other, idiosyncrasies and all.' "
In the present case the defendant also submitted, in the alternative, that if any duty had been owed by the defendant to the first plaintiff and the deceased, the duty alleged fell outside the scope of any duty that might exist.
Reference was made in that regard to Romeo v Conservation Commission NT (1998) 72 ALJR 208 and to Perre.
The defendant further said, in relation to any duty, that the standard of care to be exercised would not require him to be aware of an experimental treatment of unproven value which had not been the subject of any ethical protocol.
The defendant in addition denied that anything that he said or did not say was causative of the first plaintiff and the deceased incurring the relevant expense.

Whether duty

In my view the law did impose a duty of care to the plaintiffs on the defendant here, in relation to the November 1995 consultation.
It was not apparently in dispute that the discussion between Catherine and the defendant in September 1995, and the discussion between Catherine and the defendant in November 1995, each took place in circumstances where there was a relationship of doctor and patient between the deceased and Catherine.
In those circumstances the defendant did owe 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 first plaintiff and the deceased, as the parents of Catherine, in circumstances where Catherine was single, apparently residing with them, not in a position to earn her own living, and where the first plaintiff and the deceased were plainly interested in matters which concerned Catherine's treatment, and given the cost of medical treatment, as a matter of reasonable foreseeability.
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 circumstances referred to are also relevant to the question whether there was sufficient proximity between the first plaintiff, the deceased and the defendant, and the answer to that must, I think, be answered in the affirmative.
The decisions of the High Court in Hawkins v Clayton (1988) 164 CLR 539 and Hill v Van Erp (1997) 188 CLR 159, in each of which a negligent solicitor was held liable for economic loss caused to a person other than his client, are consistent with that.
Further, the first plaintiff and the deceased were persons who foreseeably might suffer loss as a direct consequence of any negligence, and were members of a small and easily ascertained class, whilst the defendant was operating under a duty anyway, so that if there was default on his part the question would simply be one of the distribution of a single loss: see Swanton & McDonald "Liability in negligence for pure economic loss" (2000) 74 ALJ 17.
It might be that as a result of the decision in Perre that the question of vulnerability has assumed greater significance in this area of the law, and if that be so that would tend to mitigate against the imposition of a duty here, as the first plaintiff, the deceased and Catherine had, independently of the defendant, made wide ranging enquiries through the general practitioner, Dr Smith, the Westmead Hospital, Dr Loggie and the internet generally, and were, it would seem, in a position to make further enquiry had they so desired.
However, although those matters form part of the relevant backdrop against which the scope of the defendant's duty must be considered I would not regard such as being sufficient to exclude a duty to the first plaintiff and the deceased here.
Questions of the nature and scope of the duty are not, however, as straightforward as suggested by counsel for the plaintiffs, in my view.
In that regard the defendant owed a professional duty to Catherine and as appears above his common law duty of care to her must be judged in that light.
In my view, in the circumstances here, any duty owed to the first plaintiff and the deceased was at most coextensive with that owed to Catherine, his patient, and the defendant could not be said to have owed any additional duty to provide advice or information to the first plaintiff or the deceased beyond that given to Catherine in the purported discharge of the defendant's professional obligations.

The reason for that is, as appears above, that there was no separate relationship between the first plaintiff, the deceased and the defendant, nor any separate assumption of responsibility by the defendant in relation to those persons, and in the circumstances "the duty of care is imposed by law": Hill 171 per Brennan CJ.
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.

No breach of duty

The plaintiffs have in my view failed to establish any breach of duty here.
In relation to the defendant's knowledge of Catherine's condition from time to time and her treatment to September 1995 I accept his evidence, in terms of what Dr Hammond had told him and matters within his own knowledge.
As to the September 1995 and November 1995 consultations the discussions, provision of information, general consideration of the various questions and responses were as recounted by the defendant in evidence, I also find, as was his state of knowledge.
It follows the defendant was not aware that at Royal Perth Hospital from the middle of 1994 some terminally ill bowel cancer patients had been treated with intraperitoneal Mytomycin C administered through a catheter, pursuant to a protocol which permitted that as part of a study.
The defendant could not have been in breach of any duty to Catherine by not disclosing that, however, as he was simply not aware of it, and there was nothing remarkable about that absence of awareness in the circumstances.
The question is, however, whether the defendant was required, in the discharge of his professional duty to Catherine, to make enquiries of, inter alia, Royal Perth Hospital, in order to see whether any treatment of that kind might be available.
In my view the question should be answered in the negative.
The plaintiffs' case is brought on the basis that at the November 1995 consultation the defendant 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.
Once there is a finding that the plaintiffs have failed to make good the factual allegation the basis for any such obligation falls away.
Notwithstanding that I will still consider the question, in the context of the conversation that I have found occurred.
The defendant did not consider that the form of treatment was beneficial, and did not consider Catherine was a suitable candidate for it. He was entitled to hold those views.
From a therapeutic point of view there was therefore no reason why the defendant would need to make enquiries as to the availability of the treatment in Perth.
The question is then one whether the defendant, in the discharge of his duty as a medical practitioner to Catherine, his patient, was obliged to make such an enquiry in order 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, in circumstances where the defendant had not been asked as to the availability of the treatment in Perth and there had been no discussion as to cost.
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.
Further, Catherine presented to the defendant in November 1995 with a firm conviction that Dr Loggie would be able to provide what would have been lifesaving medical assistance, was a very experienced practitioner in that form of treatment and considered that Catherine was a good candidate for the treatment. In the defendant's words, as stated, "Catherine was 'very, very enthusiastic concerning this treatment'."
Those circumstances also mitigated against the point of any further enquiry.
That was not of course the end of the matter, for Catherine then sought an act of grace letter from the defendant.
The defendant then provided the open letter of 13 November 1995, which included the statement as to the absence of "chemotherapy available in Australia to treat (Catherine's) problem …".
The plaintiffs say that statement was erroneous, and represented a breach of duty in that it ought not to have been made without further enquiry, including enquiry of Royal Perth Hospital. However, in my view, and in the light of the expert medical evidence, the statement has not been shown by the plaintiffs, on whom the onus of proof rests, to be incorrect.
In any event, the plain purpose of the act of grace letter was not to provide advice to Catherine that treatment was not available in Australia, or to confirm advice of that kind, none having been given, but rather simply to assist Catherine in any attempt she subsequently made to recoup the cost of the treatment from Dr Loggie.
Given that purpose, and the anterior discussion, the scope of the defendant's duty in the preparation and issue of the letter was to exercise the care appropriate to that stated purpose.
For that reason alone no question of negligent advice to Catherine therefore arises. The letter was not provided to Catherine so as to advise her, nor in my view was it likely that she would regard it as such. The plaintiffs' claim must fail for that reason alone.
I will, however, set out my reasons for concluding that the plaintiffs have failed to discharge the onus of showing that the statement was incorrect.
The allegation, which is not a precise one, is made not in relation to the statement in the defendant's letter of 13 November 1995 that there was no chemotherapy available, but rather in relation to the Loggie treatment, pleaded as "a combination of surgery and intraperitoneal mytomycin C (with or without hyperthemia)".
At the time of the defendant's statement no patient with Catherine's disease had been treated with intraperitoneal chemotherapy at Royal Perth Hospital, either in combination with surgery or alone.
No patient had received heated intraperitoneal chemotherapy at the hospital, and there is no doubt that the hyperthermia was a matter of substance in relation to the form of the treatment.
Intraperitoneal chemotherapy was not being used in combination with radical debulking surgery, although it had been used after other surgery, not by direct administration under anaesthesia, but by administration through a catheter after the surgery. Again, the latter was a difference of substance.
Dr Loggie claimed to be an expert in the treatment of Catherine's disease with the use of radical debulking surgery in combination with heated chemotherapy, utilising Mytomycin C, and had submitted material for publication in the medical literature which he said revealed "a tremendously enhanced survival".
At Royal Perth Hospital, and prior to publication of other material by Dr Sugarbaker in 1996, Mr Archer had been unsure of the safety of the administration of heated intraperitoneal Mytomycin C, and also would not have felt able to undertake surgery as radical as that carried out by Dr Loggie.
In June 1997 Mr Archer had stated that treatment involving a combination of extensive surgery and heated chemotherapy under anaesthesia at the completion of the surgery "has not yet been carried out in Western Australia to my knowledge".
Prof Hacker gave evidence to like effect, based on his understanding of what was being done at Royal Perth Hospital in November 1995.
Further, Prof Hacker considered that the radical debulking surgery was a significant part of the treatment, as well as the heated chemotherapy.
It is the case that in June 1996 the hospital was prepared to treat Catherine with a combination of surgery and heated intraperitoneal chemotherapy, and that in September 1996, as stated, Dr Gray agreed with the assertion that on Catherine's return to Perth she had "discovered" the treatment from Dr Loggie had been available at Royal Perth Hospital.
However, in my view the hospital's position in relation to Catherine in June 1996 must be considered in the light of the fact that she had already undergone treatment of that precise kind several months earlier, and that some palliation had been apparently achieved.
Her position was therefore quite different, and I consider that the hospital's preparedness to try a novel treatment in those circumstances was of little weight in relation to the question of the hospital's position in November 1995.
If there is a conflict between the views of Prof Hacker and those of Dr Archer or Dr Gray, I prefer the evidence of Prof Hacker.
When looked at as a whole, however, the evidence of Mr Archer is not really to any different effect, and nor I think is that of Dr Gray, given his evidence that " I wouldn't have been offering (Catherine) what Loggie offered her" and his agreement that the treatment was "quite different".

No causation

Finally, in my view, the plaintiffs have failed to establish that Catherine's decision to travel to the United States for treatment from Dr Loggie resulted from any negligent statement, act or omission on the part of the defendant.
By November 1995 the defendant had, for all practical purposes, ceased to be Catherine's medical attendant.
Catherine had sought medical advice from a number of different quarters, including Westmead Hospital in New South Wales.
On contact being made with Dr Loggie, and on his assertions as to treatment and the prospects for success, it is clear Catherine had decided to travel to the United States. In that regard the loan to finance the travel and treatment had been applied for and approved prior to the defendant being consulted again.
The real reason the defendant was consulted in November 1995, in my view, was because, as the first plaintiff stated in evidence, they had been informed of the act of grace scheme and a person in Canberra had then told the first plaintiff that the best chance of approval would be to go to the most eminent medical practitioner that they knew.
At the November 1995 consultation, and after the defendant had informed Catherine that he did not consider she would be 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 defendant, and was "very insistent" that the defendant complete such a letter for her.
Advice from the defendant, 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.
In any event, had Catherine spoken to Mr Archer at Royal Perth Hospital it is clear that any information she would have been given about possible treatment at that hospital would have been necessarily hedged about with cautions which would have included advice that the hospital had not treated anyone with Catherine's condition by the Loggie method, that any surgery would be less radical, that the hospital had not administered heated intraperitoneal chemotherapy, nor had intraperitoneal chemotherapy been administered directly at the time of surgery, that the hospital was unsure of the safety of the procedure and that, as appears above, "we're not the experts, that we're reading other people's literature in terms of clinical application … and that there's no doubt that the expertise lies in the United States not in Perth". Catherine would also have been told that the treatment that could be offered at Royal Perth Hospital was not the same treatment that Dr Loggie offered.
The question of causation must be considered in the light of the decision of the High Court in Chappel v Hart (1998) 72 ALJR 1344.
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.
In the circumstances it is not necessary for me to consider the defendant's allegation that the plaintiffs were in any event guilty of contributory negligence.
The claim must be dismissed.