Morel v Carroll
[2002] WASCA 210
•7 AUGUST 2002
MOREL -v- CARROLL [2002] WASCA 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 210 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:153/2001 | 14 JUNE 2002 | |
| Coram: | MALCOLM CJ MURRAY J STEYTLER J | 7/08/02 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed, Judgment of District Court set aside, Judgment for appellant in sum of $18,821.55 | ||
| B | |||
| PDF Version |
| Parties: | MARIE JACQUELINE MOREL GRAEME JAMES CARROLL |
Catchwords: | Negligence Duty of care owed by specialist medical practitioner Failure to advise of relatively rare sideeffect of drug Breach of duty Turns on own facts Damages General damages for cosmetic disability |
Legislation: | Supreme Court Act 1935 (WA), s 32 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Chappel v Hart (1998) 195 CLR 232 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Warren v Coombes (1979) 142 CLR 531 Devries v Australian National Railways Commission (1993) 177 CLR 472 F v R (1983) SASR 189 Sidaway v Governors of Bethlehem Hospital [1985] AC 871 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MOREL -v- CARROLL [2002] WASCA 210 CORAM : MALCOLM CJ
- MURRAY J
STEYTLER J
- Appellant
AND
GRAEME JAMES CARROLL
Respondent
Catchwords:
Negligence - Duty of care owed by specialist medical practitioner - Failure to advise of relatively rare sideeffect of drug - Breach of duty - Turns on own facts
Damages - General damages for cosmetic disability
Legislation:
Supreme Court Act 1935 (WA), s 32
(Page 2)
Result:
Appeal allowed
Judgment of District Court set aside
Judgment for appellant in sum of $18,821.55
Category: B
Representation:
Counsel:
Appellant : Mr C P Shanahan
Respondent : Mr J D Allanson
Solicitors:
Appellant : Butcher Paul & Calder
Respondent : Mullins Handcock
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Chappel v Hart (1998) 195 CLR 232
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Warren v Coombes (1979) 142 CLR 531
Case(s) also cited:
Devries v Australian National Railways Commission (1993) 177 CLR 472
F v R (1983) SASR 189
Sidaway v Governors of Bethlehem Hospital [1985] AC 871
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 73 ALJR 306
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1 MALCOLM CJ: In my opinion this appeal should be allowed, the judgment for the respondent set aside and in lieu thereof there should be judgment for the appellant for damages in the sum of $18,821.55. I have reached that conclusion for the reasons to be published by Murray J with which I agree. I also agree that it would not be appropriate to award interest on any part of the special damages under s 32 of the Supreme Court Act 1935 (WA).
2 MURRAY J:
The Nature of the Case
The appellant is a woman who suffers and has for some time suffered from rheumatoid arthritis. The respondent was her treating rheumatologist. He undertook a course of injections of an anti-rheumatic drug called Methotrexate (MTX). There is no issue between the parties that as a result of this course of treatment, which was discontinued before its completion, the appellant suffered a severe skin rash, an inflammatory reaction, a side effect of the drug. More seriously, however, she also ultimately suffered substantial depigmentation of her skin. Although the rash has healed and the depigmentation has stopped and to some extent been reversed, it still existed to what seems to me to be quite a severe degree at the time of trial. There are photographs of the appellant, who was then aged 51, which show the extent of the depigmentation. Incidentally, the photographs also show, as was the evidence, that the appellant is a woman who takes great care of her appearance, which is important to her.
3 The appellant's case was that at significant times, before the commencement of the course of treatment in February 1996 and during the course of the treatment in March 1996, the respondent failed to advise her of the possible side effects of the drug, failed to advise her to discontinue the course of treatment when the skin rash and facial swelling emerged, and failed to advise her that if she continued the course of treatment there might be further side effects, such as the depigmentation which soon occurred. Although the pleaded particulars of negligence do not happily accommodate the proposition, the case was also fought upon the basis of an allegation that the respondent effectively took the decision out of the hands of the appellant and negligently continued to administer the treatment when he should have recognised that harmful side effects might result. Issue was joined on the allegations of negligent failure to warn and negligence in the administration of the treatment. There was an issue at trial about causation of harm. The question of causation was resolved against the respondent and there is now no issue about it.
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4 The action was tried in the District Court before Fenbury DCJ on 11-13 September 2001. On 21 September 2001 his Honour gave judgment for the respondent and dismissed the appellant's claim with costs. From that decision she appeals to this Court on grounds which, firstly, challenge the conclusion of fact reached by the trial Judge that the appellant was given appropriate information and advice about the course of MTX which was proposed and then undertaken. This ground is extensively particularised. I will not set it out, but I note that there is an implicit general challenge to findings about the credibility of witnesses, particularly the appellant, made by Fenbury J. It is asserted that upon the evidence the conclusion of a failure to warn was compelling and a contrary finding was not reasonably open.
5 There is a challenge to the conclusion of the trial Judge that, even had the appellant received appropriate warnings and advice about the side effects likely or possible as a result of the injections, she would have started and continued the course of injections and taken the risk. Finally, as to liability, there is a challenge to the conclusion of the trial Judge that in the light of all the factual circumstances the decision to continue with the injections was not negligent.
6 There are two grounds concerned with the provisional assessment of damages made by the trial Judge, both in respect of the claimed special damages and the non-pecuniary general damages, which Fenbury J held would attract an award of $7500 for the effects of the MTX, "including the skin blemishes in the nature of depigmentation that she suffers together with the stress and embarrassment caused thereby". It is said in respect of that assessment that the trial Judge erred by overlooking the evidence of a psychologist, a Ms Philps, who gave evidence as to the effect of the skin depigmentation upon the appellant, having regard to her personality and her interest in her appearance. The question of the assessment of damages is one which can be put aside until the appeal in respect of liability is dealt with.
The Facts as Found and Established by the Evidence
7 In considering the matters raised with respect to the issue of liability, it is as well to start with the reasons of and findings made by Fenbury J.
8 His Honour started with a review of the evidence of the appellant and an assessment of her reliability as a witness. He thought her to be an honest witness who, however, had a poor recollection of events. I notice that that is a matter relied upon in part by the appellant when making
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- submissions about the timeliness of advice to be given to her. In the result, as Fenbury J noted, the appellant was often only able to say that she could not recall having received advice about MTX and its side effects. His Honour's final conclusion was that her evidence as to what she was or was not told was not reliable.
9 His Honour was therefore left to consider whether the appellant's case was made out by other evidence. That evidence established that the appellant suffered badly from rheumatoid arthritis and had done so over a number of years. She had undergone a variety of treatments by the administration of various drugs, to many of which she had had adverse reactions. His Honour found that the option of a course of MTX was discussed with the appellant "on a number of occasions prior to 1996". She declined to take the drug. His Honour thought that it must be the case that the appellant was concerned about its side effects. Ultimately in 1995 she did take a course of MTX in tablet form. She suffered an adverse skin reaction. She could not remember this when giving evidence, but Fenbury J found that "hard to accept".
10 It was put to his Honour that the appellant's apparently poor memory meant that to discharge his duty of care, the respondent needed to ensure that appropriate advice was given shortly before the decision to commence the treatment programme was made. Also, because the appellant was functionally illiterate, as the respondent appreciated, she could not be given written explanatory material and relied upon to have it read to her.
11 The appellant was admitted to Royal Perth Hospital on 14 February 1996 for assessment and review and treatment. She was discharged on 20 February. There is evidence in the form of hospital notes, and it was the evidence-in-chief of the respondent, that during a final ward round before the appellant's discharge, the respondent warned her of the various side effects of the drug MTX, including the possibility of an allergic reaction. The notes, not I think made by the respondent, but by the registrar or other staff medical officer accompanying him on the ward round, certainly refer to discussions about MTX to be commenced later that week by the administration of a weekly dose.
12 The note refers to MTX guidelines and a booklet to be supplied to the patient's "LMO" or local medical officer, by which is clearly meant her treating general practitioner in Mandurah, a Dr Sembi. There is no evidence now as to whether or not that was done but, in any event, being written material, it would be subject to the difficulty to which I have
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- previously referred of ensuring that the appellant was given the information and absorbed it. If the notes showed the notation "S/ES", that would indicate that the side effects had been discussed. These notes contained no such notation but, of course, they were not the respondent's notes.
13 The respondent frankly conceded during cross-examination that he could not now recall as he gave evidence on 13 September 2001:
"… whether we went over in detail the side effects once again for Ms Morel. It's possible that we did not. It's possible that we did and that the registrar did not think it appropriate or necessary or it was not his habit to enter such information, and so the absence of that information in the medical record does not necessarily mean that we did not undertake a further explanation of those side effects. I accept that there is no documentation to that effect."
14 Fenbury J found that appropriate warnings were given. It seems to me, having reviewed the evidence, that his Honour was on shaky ground when that finding was made, but it remains the fact that his Honour's decision that the appellant was not a reliable witness is unassailable: Abalos v Australian Postal Commission (1990) 171 CLR 167. That being so, whether or not the finding that the advice was given is sustainable, the appellant failed to establish that it was more probable than not that it was not given. That was the end of this aspect of the case, but left for consideration the question of the alleged negligence during the course of the treatment.
15 There were three injections of MTX given; the first on 26 February 1996, the second on 4 March and the final injection on 25 March. It can be seen that the gap between the second and third injections is greater than the period of one week originally envisaged. It should be recalled that this was a course of treatment. It's beneficial effect was not expected to become apparent immediately. As I understand it, it takes a period of time for the beneficial effect of the drug to be felt by the patient. The injections were administered by Dr Sembi.
16 The evidence was that the appellant had a skin reaction, some swelling and a rash, a few days after the first injection. When she went for the second injection on 4 March 1996 she raised it with Dr Sembi. The matter was not brought to the attention of the respondent and the second injection was administered, following which the rash became
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- markedly worse and itchy. The appellant consulted Dr Sembi and he referred her to the respondent who, as a matter of urgency, referred her on to a dermatologist, Dr Singh.
17 In his referral note, sent by facsimile, the respondent observes that the appellant "has developed a rash which may be due to anti-rheumatic drug therapy." With the referral note, the respondent sent the RPH discharge summary dated 20 February 1996 under the hand of the registrar. It referred to the February hospital admission. One of the symptoms she presented at that time was a left side facial rash. The discharge summary notes that the patient was reviewed by dermatologists and a diagnosis of facial warts was made. The summary says, "Not felt to be aggravated by Methotrexate." However, the appellant's symptoms in respect of which she was referred to Dr Singh were, of course, of a different character. The discharge summary showed that weekly administration of MTX by her local GP was to be commenced and so Dr Singh had that relevant recent history before him.
18 Because the appellant was to be seen by the respondent on 18 March 1996, Dr Singh saw her immediately and provided his handwritten report to the respondent on 15 March in the following terms:
"Much of the rash had settled by the time she presented today. However there was some evidence of mild erythema and slight dryness of the skin of the exposed (sunlight exposed) areas of the neck, sparing the retroauricular and submental regions.
She claimed that the rash was itchy, had been more florid with swelling of the skin. There was slight involvement of her legs.
She is adamant that on each occasion of her having had MTX injections (of which she claims she has had three to date) she has developed skin eruptions. It would appear that there is a causal/temporal relationship with this drug and the skin eruptions. Photo sensitivity has been documented with MTX.
This I realise, will pose a problem in that MTX appears to be an important part of your anti-rheumatic drug therapy for her."
19 There are I think a number of matters to be noted. In the first place, the complaint, supported by the examination of the appellant, was of a florid, itchy rash with some swelling of the skin and, so far as it was evident, the condition was particularly pronounced on areas of her skin usually exposed to the sun. That of itself was consistent with a link to
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- MTX, in respect of which Dr Singh noted photo-sensitivity had been documented. A good example is the information booklet, exhibit Q, which was tendered in evidence. However, it was also evident that, the second injection having been administered 11 days before Dr Singh saw the appellant on 15 March 1996, by that time "much of the rash had settled", and so it was not a condition which presented more than relatively transitory discomfort.
20 Dr Singh gave evidence that it was his opinion "that it would appear that there was a causal or temporal relationship with this drug and the skin eruption." His evidence makes it clear that he thought it was the MTX which was causing the appellant's symptoms. He thought the temporal relationship was "an important aspect" of that judgment. Dr Singh said that when he expressed the understanding that this would pose a problem for the respondent's anti-rheumatic drug therapy, the problem he had in mind was "that you have one less drug available to treat … ." Of course Dr Singh made the point that it was a matter of judgment for the respondent to determine whether or not the MTX drug treatment should cease.
21 On receipt of that advice the respondent did not contact Dr Singh. He did not discuss the matter with him and, in my opinion, a fair summary of the respondent's evidence is that he read a degree of uncertainty into the letter from Dr Singh and, although the respondent was prepared to accept the possibility that the MTX injections were producing the skin reactions, he was himself uncertain that that was so. He also recognised the importance of a temporal relationship between the administration of the drug and the reaction if one is seeking to establish a causal relationship, but to his mind and in his experience, because the MTX was administered intravenously the major impact upon the blood would occur and adverse skin reactions would be clearly observable within a period of about 12 hours after the administration. In addition, such reactions might be caused by one or more of the other drugs prescribed for the appellant which she was taking at that time.
22 The appellant had an appointment on 18 March 1996. It was not with the respondent but with a resident dermatologist at RPH. That particular medical practitioner was not called to give evidence but his brief notes were available at trial, including a note of "planar verucae with post-inflammatory hyper pigmentation". This appears to be a reference to the facial warts. The note continues with a discussion as to what the cause might be. The respondent's evidence was that on reading that note it
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- appeared to him that the problem reported by Dr Sembi and in relation to which he had referred the appellant to Dr Singh was continuing to fade.
23 The notes next reveal a consultation of the appellant with the respondent on 21 March 1996 by which time the appellant had still not had the third injection of MTX. The respondent had no independent recollection of what was discussed at this consultation, but he accepted that he would have regarded it as important in the circumstances to discuss the reactions the appellant was having or had and the possible relationship to any drug which had been prescribed for her. The notes made by the respondent include the following:
"Complained of recurring facial swelling and erythema – eyelids puffy and face also, associated with sweating. Episodes last approximately 12 hours. ? Prednisolone induced ? other drug ? Ranitidine ? Plaquinil ? MTX – not temporally related." (I have removed various abbreviations)
24 The respondent said that he indeed considered all these possibilities. The note with respect to the MTX related to the "window" of 12 hours during which one would expect the drug to produce reactions of the kind complained of. He said he could not obtain from the appellant a sufficiently precise history and he remained unsatisfied that the cause of her reactions had been identified. The question of skin depigmentation was not in his mind. The respondent said that he was "pretty sure" that he discussed with the appellant possible causes for the skin reactions she had experienced, including the possibility that the MTX might be contributing to them. He accepted at the trial that that was in fact the case and, indeed, that the subsequent depigmentation following the third injection was probably caused by it, but at the time of the consultation on 21 March 1996 the position was not clear.
25 The respondent accepted that he was responsible to properly advise the appellant about the treatment. His thought processes were:
" … when there are competing issues in regard to a side effect in one system (dermatology) and a disease in another system (rheumatology) that needs to be dealt with, then one has to make a judgment about how serious the side effect is as opposed to how serious the disease is, what the implications are if therapy is withdrawn, what the alternatives available are. And my judgment taken at that time was a judgment taken after I'd sought advice, and heard the advice, had taken on board the
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- distinct possibility that there was a relationship but that there was not certainty of the relationship, and made the judgment to continue."
26 Later when it was put to the respondent that he might have left the decision to the appellant, he agreed that would have been a reasonable thing to do, but he said honestly that he had no recollection of taking that course and he added:
"My reading of those symptoms was that these were relatively benign symptoms in the sense that they were resolving fairly quickly, such that neither I nor Dr Singh nor others could really see very much evidence of any significant reaction. The possibility of later depigmentation as a consequence of that reaction was not something I had in my mind, and so I very probably was making a decision as to whether or not it was reasonable for her to continue with the drug and experience these seemingly benign symptoms or whether it was best to withdraw. I didn't have any real concern that she would come to any great harm if we continued. And I perhaps could have taken the course of putting the ball back in her court and leaving it entirely to her to decide, but in an effort to try and make a decision about what might be appropriate for her in a global or total sense, taking account of the arthritis which has not been insignificant, I made the decision to advise her to continue, or to not put the proposition to her that she might decide herself."
27 And so it seems that upon the advice that she should continue, the third injection of MTX was administered four days later on 25 March. Again there was a prompt skin reaction. It was more serious on this occasion. There was a severe itchy rash and blisters, followed in many of these areas by depigmentation of the skin. There is evidence that the appellant complained to Dr Sembi who referred her complaint to the respondent. The appellant's condition was further investigated by him and he again referred her to Dr Singh and discussed her case with him on 2 April 1996. Dr Singh reviewed her immediately and promptly on 4 April reported to the respondent on her condition. He said:
"I would favour drug eruption as the most likely cause. It would appear that Methotrexate will need to be ceased as discussed with you. It certainly limits your options of managing her joint symptoms."
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- The course of treatment with MTX was thereupon ceased upon the instruction of the respondent.
28 Fenbury J was assisted by other evidence of expert opinion. There was no doubt about the eminence of these witnesses. Dr Awerbuch is a specialist rheumatologist. He reported on the severity of the appellant's rheumatoid arthritis and the lack of temporal relationship between her skin reactions and the MTX injections. He noted the absence of published data of the type of reactions being experienced by the appellant and, deleting from his evidence the expression of an opinion about the reasonableness of the respondent's conduct, Dr Awerbuch concluded:
"Adverse skin reactions due to the use of low dose Methotrexate in the treatment of rheumatoid arthritis are rare and when they do occur, are usually mild and self-limiting. Examples of Methotrexate discontinuance due to skin reactions in patients with rheumatoid arthritis are conspicuous by their absence."
29 Dr Rohr is a specialist dermatologist. Again the expression of his opinion strayed into the area of the trial Judge's decision-making but he noted the absence in the appellant's case of the recognised more sinister side effects of MTX such as abnormal liver function, nausea, upper gastrointestinal symptoms, bone marrow depression and the like. Dr Rohr concluded:
"Dermatological side-effects do occur but, when one has to regard the overall spectrum of severe arthritis against cutaneous side-effects, then I feel one should manage the arthritis adequately rather than worry unduly about skin side-effects. At present I feel this patient's main problem is that of vitiligo which is thought to be an auto-immune disorder and I do not feel that it's being caused by her adverse drug reaction."
- For the appellant it is submitted, I think correctly, that in view of the trial Judge's finding about causation, the value of this witness's evidence was reduced considerably.
30 The third witness in this category was a Dr Browne, an expert rheumatologist who expressed the view that it was prudent to consider MTX as a potential causative agent of the skin reaction and, because of the appellant's history of adverse reactions to other drugs used in the treatment of her arthritis, although it was reasonable to commence treatment with MTX, it was not reasonable to continue to use it in the face of a worsening skin reaction.
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31 However, the trial Judge considered that in the circumstances established by the evidence to which I have referred, it was not unreasonable to continue with the treatment or, effectively, to cause the appellant to make that decision, given that she accepted the respondent's advice to that effect. His Honour described the respondent as being caught up in a difficult problem to try to find the right balance between alleviating the appellant's severe symptoms of rheumatoid arthritis, but at the same time not causing her to suffer adverse side-effects of too great a severity or for too long a period. His Honour said that it was not established to his satisfaction that "the decision made by the [respondent] to allow the [appellant] to undergo the third injection was an unreasonable decision; was a decision that no reasonably careful practitioner of similar special skill would make."
A Problem of Causation
32 Before leaving this review of the findings of fact made by Fenbury J and the evidence bearing upon the issues as to breach of duty as they were contested at trial and as they are canvassed again by the third and fifth grounds of appeal, I should mention specifically the issue of causation raised in ground 4, which is concerned with the conclusions expressed by the trial Judge at pars [31] – [33] of his Honour's judgment. The trial Judge there deals with the question whether, if the appellant was not given appropriate warnings and advice in relation to the side-effects which might be anticipated from MTX before she commenced the treatment, she would have heeded advice and information about those side-effects, had it been given, and would have declined to commence or continue with the treatment.
33 His Honour noted that the appellant was a "photogenic" woman who enjoyed an active social life, outgoing and proud of her physical appearance. His Honour said she was a person who "might well have been reluctant to take medication that posed a risk to her physical appearance." On the other hand, his Honour reminded himself that the appellant's rheumatoid arthritis was in such a state that it was very painful and debilitating, and that a variety of different treatments and medication had been attempted without significant success. His Honour in the end concluded that she would have taken the treatment with MTX even "knowing the possible side-effects, as she did indeed do."
34 The question was a hypothetical one because, of course, his Honour had found, not only that he was not persuaded that at an appropriate time prior to commencing the treatment she had not been given appropriate
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- information and advice about the possible side-effects of MTX, but also that such information and advice had in fact been given. In those circumstances there was no breach of duty as alleged by a failure to give an appropriate warning about the side-effects which might reasonably be anticipated. It was unnecessary to consider what might have been the situation with respect to causation had the facts been other than as found by the trial Judge.
35 However, had she not been given appropriate information and advice in a timely way before the treatment was commenced, there seems to me to be very little to support the view that she would have ignored such advice if given. A number of the relevant factual circumstances concerning the appellant's personality and physical situation were mentioned by the trial Judge and, in addition, the appellant gave evidence that, particularly if she had known that there was any prospect of depigmentation of her skin, she would not have undertaken the treatment. Further, she said that after the first two injections and the inflammatory skin reaction, the rash and swelling, which she sustained, she was very nervous and fearful about the third injection and what might transpire. One assumes therefore that that injection was accepted by the appellant because she was advised by the respondent to continue and she accepted that advice.
36 The question of causation, when it is said that the breach of a duty of care lies in the failure to warn or give appropriate information, is of a standard kind arising in the law of negligence, a question of fact to be decided on the basis of common sense and without the application of rigid rules. The appellant having suffered physical injury of a kind about which the respondent had a duty to warn the appellant and the respondent having breached the duty by the failure to warn, the court would ordinarily conclude that the respondent's breach of the duty materially caused or contributed to the receipt of the appellant's injuries, particularly in a case such as this where the injury was produced by the administration of a drug upon the respondent's advice: cfChappel v Hart (1998) 195 CLR 232, 239 – 40, 242 – 4, 255 – 7, 268 – 73, 282 – 4.
37 For myself, I would find it difficult to say that a failure to warn, in the circumstances canvassed by the evidence in this case, was not causally relevant to the occurrence of the very harm about which there was a duty to warn, but, in my opinion, although ground 4 might be made out, that conclusion does not aid the appellant in this case. This case is different from Rosenberg v Percival (2001) 205 CLR 434 which came before the
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- High Court upon the basis that the surgeon had negligently failed to warn the patient about the risks involved in proposed surgery.
The Law as to the Duty of Care
38 I turn now to the questions of breach of duty and liability raised by the grounds in the light of the evidence and findings of fact made by Fenbury J. The leading authority applicable to the duty of care owed by the respondent in this case is Rogers v Whitaker (1992) 175 CLR 479. There, as in this case, there was no question that the medical practitioner owed a duty of care to his patient. At 483 the majority put the duty in the following terms:
"The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a 'single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment;' 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, … ."
39 At 489 their Honours added in relation to the notion of a single comprehensive duty of care:
"However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or
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- she is informed in broad terms of the nature of the procedure which is intended. But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice."
40 Finally, at 490 their Honours said:
"The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it."
41 The High Court again had occasion to focus upon the question of the breach of the duty of care owed by a medical practitioner to a patient in the context of an alleged failure to warn or give information in Rosenberg. As Gleeson CJ said at 441 [16]:
"There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated. This danger may be of particular significance where the alleged breach of the duty of care is a failure to warn about the possible risks associated with a course of action, where there were, at the time, strong reasons in favour of pursuing the course of action."
- Clearly, from the way in which Fenbury J expressed his conclusion about this case, his Honour had in mind those cautionary words, as do I.
42 The passage about the standard of care quoted above from the judgment of the majority in Rogers at 490 is concerned with the question of breach of duty having regard to the likelihood of harm and the
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- materiality of the risk to the patient in question. It says nothing about the foreseeability of harm, a matter to which Gaudron J in Rogers particularly directed attention. At 492 her Honour said:
"The duty involved in diagnosis and treatment is to exercise the ordinary skill of a doctor practising in the area concerned. To ascertain the precise content of this duty in any particular case it is necessary to determine, amongst other issues, what, in the circumstances, constitutes reasonable care and what constitutes ordinary skill in the relevant area of medical practice. These are issues which necessarily direct attention to the practice or practices of medical practitioners and, of course, the current state of medical knowledge will often be relevant in determining the nature of the risk which is said to attract the precise duty in question, including the foreseeability of that risk."
"Leaving aside cases involving an emergency or circumstances which are special to the patient, the duty of disclosure which arises out of the doctor-patient relationship extends, at the very least, to information that is relevant to a decision or course of action which, if taken or pursued, entails a risk of the kind that would, in other cases, found a duty to warn. A risk is one of that kind if it is real and foreseeable, but not if it is 'far fetched or fanciful'. Certainly, the duty to warn extends to risks of that kind involved in the treatment or procedures proposed."
44 In Rosenberg Gummow J expressed his agreement with those propositions and at 455 [64] added, in words which have a particular relevance to this case:
"A risk is real and foreseeable if it is not far-fetched or fanciful, even if it is extremely unlikely to occur. The precise and particular character of the injury or the precise sequence of events leading to the injury need not be foreseeable. It is sufficient if the kind or type of injury was foreseeable, even if the extent of the injury was greater than expected."
45 As his Honour put it at 456 [69], having in mind that the criterion is reasonable foreseeability:
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- " … the first step must be to define the relevant risk. It is appropriate in this context to define the risk by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur. These factors are to be considered from the point of view of what a reasonable medical practitioner in the position of the defendant ought to have foreseen at the time. This approach directs attention to the content of any warning that could have been given at the time."
46 His Honour went on at 458 to note that the test in Rogers for the materiality of a risk about which a warning or instructions were to be given, involved two elements, as the test was stated in Rogers at 490. The first was an objective test as to whether a reasonable person in the patient's position would be likely to attach significance to the information to be provided and the second was whether subjectively the particular patient would be likely to attach significance to it.
47 It is dangerous, of course, to endeavour to unduly summarise the effect of a judgment such as that of Gummow J in Rosenberg but, in my opinion, in a case where it is said that the negligence of the medical practitioner lies in a failure to provide information or advice about the risks inherent in a proposed procedure or course of treatment, a medical practitioner will be in breach of his or her duty of care if there is a failure to provide information or warn about a reasonably foreseeable risk of physical injury or harm of the kind which occurred to the patient, which is material to the decision to undertake the procedure of treatment proposed in the sense that a reasonable patient would, or it is or should be known to the medical practitioner that the particular patient would, be likely to regard the information or advice as significant in making the decision whether or not to undertake the treatment proposed.
48 If breach of duty should be established having regard to those matters, then it will be necessary to go on to consider questions of causation, and the failure to warn will, as I have said, be regarded as materially causing or contributing to the physical injury or harm which occurs, that being harm of the kind about which a warning should have been given, if, had the warning been given, the patient would not have undertaken the treatment and so would have averted the injury: see per Gummow J in Rosenberg, 460 [83] – 462 [87].
49 As to the question of materiality of risk, having reviewed a number of the authorities in which the conclusion of the courts was that the
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- medical practitioner was liable for a failure to warn, Kirby J said in Rosenberg at 482 [149]:
"The importance of all of these cases is that they emphasise that it is the patient who ultimately carries the burden of the risks. Therefore, unless such risks may be classified as 'immaterial', in the sense of being unimportant or so rare that they can be safely ignored, they should be drawn to the notice of the patient. Only then can an informed choice be made by the person who alone, in law, may make that choice, namely the patient."
There was a Breach of Duty
51 The appellant established a number of relevant physical injuries. After the first injection the appellant had a skin reaction in the way of an inflammatory rash. She told no-one until she went to Dr Sembi for the second injection, following which the reaction was more severe. There was an inflammatory rash which was itchy and uncomfortable, but it soon commenced to subside and by the time she saw Dr Singh it was less in evidence. This was the first the respondent was aware of the occurrence of adverse side-effects of which it was found he had spoken in some detail to the appellant during the course of her admission to RPH in February 1996.
52 On receipt of Dr Singh's report, the respondent was reasonably of the view that a causal relationship between the reactions the appellant was experiencing and the MTX had not been established. Although the temporal relationship was available to him, it was not sufficiently precise to enable a conclusive diagnosis. That remained the position after the consultation on 21 March 1996, at which the negative skin reaction in the form of an itchy rash and swelling of which the appellant complained was
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- found to be insufficiently temporally related to the MTX injections to enable a conclusive diagnosis that it was the drug responsible.
53 It remained the case that the appellant was in need of an effective treatment for her rheumatoid arthritis, which itself was creating physical problems of some magnitude for her. She was taking other drugs which might have produced the same reactions of a temporary kind.
54 Following the third injection on 25 March 1996, for the first time the reaction was more severe in terms of an inflammatory rash and blisters over various areas of her skin. For the first time depigmentation of the skin followed. The decision to have the third injection had been taken by the appellant after the consultation of 21 March upon the respondent's advice. He did not consider the possibility of depigmentation which was a rare, although reasonably foreseeable, side-effect of MTX, as were adverse skin reactions generally. Depigmentation was simply a rather more serious type of skin reaction, manifesting photo-sensitivity. It was, therefore, within the risk which ought to have been anticipated. The appellant was not told of the possibility of depigmentation before the condition occurred.
55 In my opinion, the evidence established that adverse skin reactions, including the risk of some depigmentation, were a reasonably foreseeable consequence of the administration of MTX. The history showed that this was particularly so for the appellant, but the respondent did not consider the possibility of depigmentation. The evidence was not that depigmentation was not a reasonably foreseeable side-effect of the administration of MTX to the appellant, merely that it was not thought of after the second injection. On 21 March there was general discussion that the skin reactions experienced by the appellant to that point might be related to the MTX injections, but the respondent advised the appellant to continue because of the pressing need for some effective treatment to alleviate the symptoms of rheumatoid arthritis. Because of the relatively transitory, although uncomfortable, symptoms which she was then experiencing, the appellant accepted that advice.
56 In my opinion, the conclusion of Fenbury J that there was no negligence in respect of the advice given to continue the treatment, if regard is had only to the injuries suffered to that point, would be sustainable. The relevant risk was in fact generally discussed and there were good reasons to advise the appellant to continue with the treatment. It was not unreasonable that the respondent should balance against the
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- need for the treatment, as it was then perceived to be, the relatively transitory and minor adverse reactions the appellant was experiencing.
57 But the more difficult question is with respect to the failure to warn about the possibility, relatively remote though it was, of depigmentation, an injury of greater severity, but relatively rare. It could have been said that depigmentation might occur, but it was a relatively remote possibility, and, if it did occur, it could be anticipated that there would be some recovery of skin colour over time.
58 To my mind, that possibility was in the relevant sense a material risk which might reasonably cause a person in the appellant's position to attach significance to it in making the decision whether to continue with the MTX treatment. Further, the appellant was a person sufficiently well-known to the respondent to be a person who, because of her pride in her physical appearance, would be likely to attach significance to the possibility of depigmentation. In my view, to fail to tell her about that risk was a breach of the respondent's duty of care because it caused the appellant to take the decision to continue the treatment in ignorance of a possible side-effect which might well have been important to her. This was an additional factor which would bear upon her decision whether to take the treatment or not, a decision about which she was, on her evidence, when she went back to Dr Sembi to take the third injection:
" … very stressed and I was breaking down and I was crying. I just couldn't cope any more then and I had to have a third needle. I didn't really want to have it. I was so scared and after the third needle and I was – that's it. I went worse."
59 In my respectful opinion, the inference of breach of duty in respect of the failure to warn of the possibility of depigmentation should have been made and I would hold the trial Judge to be in error in that regard. The respondent was moved by what were to him more pressing concerns which caused him to make an evaluation of the likely risks in such a way as to advise the appellant to continue the treatment, upon the basis that the likely benefit would outweigh the relatively transitory harmful side-effects she had already been experiencing. He was not entitled, however, to overlook the possibility of depigmentation which he ought to have realised would be important to the appellant. She decided to take the treatment. The harmful side-effect of depigmentation resulted and, as I have said, upon the evidence it could not be held that had she known of this possible side-effect the appellant would have continued with the treatment in any event. The evidence was all the other way. In the result,
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- the failure to warn clearly bears the necessary causal relationship to the harm which occurred by way of depigmentation.
The Damages to be Awarded
60 In view of my conclusion that, at least to that extent, the respondent should have been held to be liable in negligence for the appellant's injury by way of depigmentation, it is necessary for me to address the question of the provisional assessment of damages made by Fenbury J.
61 In making this assessment, Fenbury J said that the claim was of such a minor kind that it would more appropriately have been litigated in a Local Court. Ordinarily such a court is limited to actions where the amount claimed is not more than $25,000: Local Courts Act 1904 (WA), s 30(1). I have already mentioned that the claim, as pleaded, was for damages for pain and suffering and loss of enjoyment of life by reason of the cosmetic disability suffered. Special damages were claimed but there was no other claim for economic loss. As Fenbury J noted, the assessment was complicated by the fact that the appellant had a number of other psychological and social problems and significant health problems, following a fall in 1987, the break-up of her second marriage and associated problems.
62 These were discussed by the psychologist, Ms Philps. The second ground of appeal complains that the evidence of this witness was ignored by the trial Judge but, although his Honour did not mention the witness by name, he obviously had the evidence she gave in mind when he referred generally to the appellant's social, psychological and emotional problems. On the view I have taken about liability, the relevant harm in relation to which the adequacy of the provisional assessment is to be judged is the depigmentation, rather than the relatively transient, although painful, inflammation or rash and swelling associated with it. It is necessary to separate out the problems independently caused when considering the assessment.
63 Looking at the appellant's complaints overall, the trial Judge found that the appellant:
"… keenly felt the loss of pigmentation problems that she had. She was obviously a person who particularly cared about her physical appearance, perhaps more so than many people her age. The depigmentation, which is evidenced in photographs that were tendered and was apparent in court, could not be
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- described as significantly disfiguring. There was a difference in shading in parts of her skin but the depigmented areas were not white. They were simply of lighter colour than the surrounding skin. Nevertheless, however, I can accept that the plaintiff felt very strongly that her appearance had been adversely affected significantly."
64 Particularly for that condition and the stress and embarrassment caused to the appellant thereby, Fenbury J said that he would have awarded damages in the sum of $7500. He made no assessment of special damages, saying merely that on the evidence presented his Honour was unable to do so.
65 It is complained that Fenbury J erred in this last respect because there was adequate evidence to permit an assessment of special damages. The appellant gave evidence that she used a self-tanning lotion to reduce the effect of the depigmentation, at a cost of about $13 a week. She had been doing this since the depigmentation occurred. There is no documentary support for that claim.
66 She added to that evidence a statement from the Health Insurance Commission detailing treatment received from various medical practitioners over the period from 20 February 1996 to 9 February 2001. On that document, highlighted and ticked, she had identified the charges for consultations with Dr Singh and Dr Sembi which, she agreed with counsel, were medical expenses incurred in relation to her "skin condition". So far as Dr Singh is concerned, the charges commence with the consultation of 15 March 1996 and continue with the consultation of 2 April 1996, consultations later in that year, four consultations in 1998 and one in 2000. Those for Dr Sembi commence on 26 February 1996 and continue with various consultations, concluding on 7 June 1996.
67 In each case all or part of the charge made for the service has been paid by Medicare, but I presume, because of the absence of any submission to the contrary, that the benefits received would be repayable under the provisions of the Health and Other Services (Compensation) Act 1995 (Cth) upon the making of an award of damages which includes provision for the expenses in respect of which the plaintiff may be regarded as having received provisionally the benefits in question. The provisions and the relevant procedures are usefully discussed in Luntz "Assessment of Damages for Personal Injury and Death", 4th Ed, pars [4.4.4] - [4.4.5]. The total cost of the medical expenses so incurred was $621.55.
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68 Two receipts for consultations with the psychologist, Ms Philps, dated 24 and 29 May 2001, each in the sum of $100, were received in evidence as exhibit D. They are said to be for psychological counselling, but I think they may be qualifying consultations for Ms Philps as a witness, because exhibit E, her report of 12 July 2001 provided to the appellant's solicitors, gives as the dates when the appellant was interviewed and tested as 11 and 25 May, the dates upon which the services the subject of the receipts were said to have been rendered.
69 As I have mentioned, Ms Philps refers to numerous other factors as well as the depigmentation of the appellant's skin as contributing to the psychological state of the appellant, described by the witness (in the face of unresolved objections on behalf of the respondent) as a severe, major depressive disorder without psychotic features, for which Ms Philps recommended, "psychological counselling to assist her with difficulties she experiences with body-image, depression, anxiety, anger and distress." All or part of this sum of $200 may be allowable on taxation of costs as expenditure associated with this witness, but, to my mind, it was not recoverable as an item of special damages.
70 I see no reason, however, why an allowance should not have been made for the unrecovered cost of the tanning agent used by the appellant, at least to the time of trial, which, as I have said, took place in September 2001. The depigmentation having occurred following the third injection on 25 March 1996, there is a period of about 64 months in respect of which an allowance should be made, rounded off to $50 per month, giving an award of $3200. On that basis the total award for special damages would be $3821.55 and, in my opinion, the trial Judge erred by not including such an allowance in his provisional assessment.
71 As to the future in respect of the depigmentation, the evidence was much more indefinite. There was a report in evidence from Dr Singh dated 13 August 2000 in respect of a consultation with the appellant on 9 August 2000. The substance of the report is as follows:
"She presented for an opinion regarding the status of her hypopigmented skin areas. She claims that the face, legs and arms have progressively been repigmenting albeit slowly. She is still noticeably depigmented over the neck and anterior upper chest with a few isolated depigmented patches on the abdo/trunk.
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- When last seen in June 1996 it was my considered opinion at that stage that one was dealing with postinflammatory hypopigmentation and she was advised at that time that some repigmentation would occur in due course. This is still my opinion on reviewing her today. She has been advised to photoprotect the affected sites to prevent acute sunburn."
72 Dr Singh was not asked, in giving evidence, to give a prognosis as to the future and our attention was not directed to any other evidence upon this topic.
73 Exhibit A comprised 11 photographs of the appellant. Those numbered 5 to 11, as I understand the evidence given by the appellant, are views of various portions of her anatomy showing areas of depigmentation, which photographs were taken in 1996. It was possible to compare those with exhibit B, a bundle of 15 photographs taken, according to the appellant's evidence, in 2001 at RPH. The appellant's evidence was that the areas of depigmentation were now, as she gave evidence in September 2001, "not as white" as shown in the photographs. She said that most improvement had occurred on her left arm, her left leg and her face. There had not been improvement to the same degree on her neck. To the best of the appellant's recollection, the photographs were taken in March or April of 2001, about six months before the trial.
74 As I have mentioned, Fenbury J had the advantage of seeing the areas of depigmentation when the appellant came to give evidence. His impression was that the depigmentation was not "significantly disfiguring", but he also described the depigmentation as being "evidenced in photographs that were tendered" and his Honour appears to have accepted the photographs as accurate depictions of the appellant's condition. To my mind, the areas of depigmentation, even at trial, continued to present a significant cosmetic disability, made worse, I think, because of the appellant's concern about her physical appearance. She gave evidence of her discomfort in public places and the restrictions upon her previously active social life. She felt that she could not contemplate commencing another relationship.
75 The evidence was naturally subjective, but, nonetheless, provided a real measure of the disability which to the point of trial had continued for over five years and was likely to continue for at least some years more. I bear in mind also that the appellant was 51 years old at the time of trial and that the cosmetic disability was steadily, albeit relatively slowly, lessening, presumably thereby improving the capacity for the appellant to
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- mask the state of her skin by the use of the tanning agent which she regularly employed. However, the splotches of different coloured skin were apparently still evident, despite the use of this agent, at the time of trial and, in my opinion, one must bear in mind that for a person as sensitive about her appearance as the appellant it matters little that the splotches are not of white skin but of lighter coloured skin. The disfigurement is no doubt as keenly felt. To my mind, an award of $7500 by way of general damages was manifestly inadequate. I would double it.
76 In conclusion therefore, I consider that this appeal should be allowed. I would set aside the judgment obtained by the respondent and in lieu thereof enter judgment for the appellant in the sum of $18,821.55. In the circumstances of this case I would not think it appropriate to award interest on any part of the special damages under the Supreme Court Act 1935 (WA), s 32.
77 STEYTLER J: I have had the advantage of reading the reasons for decision of Murray J. I agree with them and with his Honour's conclusion.
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