Mules v Ferguson
[2014] QSC 51
•25 March 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Mules v Ferguson [2014] QSC 51
PARTIES:
NANCY LEANNE MULES
(plaintiff)
v
KAYLENE JOY FERGUSON(defendant)
FILE NO/S:
SC No 339 of 2011
DIVISION:
Trial
PROCEEDING:
Civil
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
25 March 2014
DELIVERED AT:
Mount Isa
HEARING DATE:
9, 10, 11, 12, 13 September 2013; 28, 29, 30, 31 October 2013; 1, 4 November 2013.
JUDGE:
Henry J
ORDERS:
(a) Claim dismissed.
(b) I will hear the parties as to costs.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the plaintiff claims damages for injury and loss occasioned by the alleged breach of the defendant’s duty in contract and tort – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – where her illness was diagnosed and treated in time to save her life but too late to prevent irreversible neurological harm – whether the defendant’s failure to refer the plaintiff for specialist assessment was a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment to the plaintiff – whether specialist referral would have prevented irreversible neurological harm
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE (ALTERNATIVELY FOR BREACH OF CONTRACT) – STANDARD OF CARE – GENERALLY – where the plaintiff sought treatment for sore neck and headaches – where the plaintiff claims she advised her general practitioner, hospital staff and her physiotherapist of dizziness, loss of hearing and sight – whether the defendant was negligent in not conducting a physical manipulation of the plaintiff’s neck
TORTS – THE LAW OF TORTS GENERALLY – GENERAL PRINCIPLES – causation and breach – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis – whether the defendant’s failure to refer the plaintiff for timely specialist assessment was causative of her permanent injury
DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES – assessment of damages – where the plaintiff is blind and deaf as a result of contracting cryptococcal meningitis
Civil Liability Act 2003 (Qld) s 9, s 11, s 22, s 51, s 61, s 62
Civil Liability Regulation 2003 (Qld) reg 6, sch 7Breen v Williams (1996) 186 CLR 71, cited
Heywood v Commercial Electrical Pty Ltd [2013] QCA 270, considered
McNeilly v Imbree [2007] NSWCA 156, cited
Munzer v Johnston & Anor [2008] QSC 162, considered
Rogers v Whitaker (1992) 175 CLR 479, cited
Sharman v Evans (1977) 138 CLR 563, cited
Tobler v Halverson (2007) 70 NSWLR 151, consideredWaller v McGrath & Anor [2009] QSC 158, followed
COUNSEL:
RJ Lynch with AS Katsikalis for the plaintiff
GW Diehm QC with JC Trevino for the defendant
SOLICITORS:
Shine Lawyers on behalf of the plaintiff
K&L Gates on behalf of the defendant
Index
Heading Page
A. Introduction 3
B. Chronological Review and Findings 10
C. Breach 44
D. Causation 56
E. Quantum 59
A. INTRODUCTION
The plaintiff is blind and deaf as a result of contracting cryptococcal meningitis in 2008. Her illness was diagnosed and treated in time to save her life but too late to prevent irreversible neurological harm.
She blames her general practitioner for this. She alleges her doctor, the defendant, should have referred her for specialist assessment earlier. She alleges that had that occurred, her illness would have been diagnosed and treated earlier and she would not have suffered the loss of sight and hearing which has devastated her life.
The plaintiff claims damages for injury and loss occasioned by the alleged breach of her doctor’s duty in contract and tort.
The parties
The defendant obtained her Bachelor degree in Medicine in 1995 and thereafter undertook her training at hospitals and practices in Newcastle. She qualified as a fellow of the Royal Australian College of General Practitioners in 2000.[1] In 2001 she moved to Cairns. Thereafter she worked part-time as a general practitioner at a medical centre and an aboriginal medical service. In about 2006 she started part-time work at the Omega Medical Centre, which is where she was working when consulted by the plaintiff.[2]
[1]T8-48 L47.
[2]T8-49 L13—T8-50 L8.
At the time the plaintiff fell ill she was 43 years old. She worked full-time as an operations manager for a hotel business.[3] She had a teenage son from a past relationship. The onset of her illness coincided with the breakdown of her marriage to her then husband, a man from England.[4] Her husband actually departed her home and left Australia on 25 September 2008, the day before the plaintiff was finally diagnosed with cryptococcal meningitis.[5]
What is Cryptococcal Meningitis?
[3]Ex 3 tab 3 p 19; T1-36 L10.
[4]Ex 3 tab 3 p 18.
[5]T1-52 L7.
Cryptococcal meningitis is an extremely rare infection that most general practitioners will never see during their practising life.[6] In Australia it is more common in the tropical north but even there only about 20 cases per million people occur per year.[7]
[6]Ex 2 tab 8 p 18; Ex 2 tab 12 p 47.
[7]Ex 2 tab 8 p 17.
Cryptococcal meningitis is a form of fungal infection of the meninges, the tissue membranes that protect and enclose the brain and spinal cord. It is caused by infection of the lung by a yeast, cryptococcus neoformans, which then spreads though the blood stream to the brain causing meningitis.[8]
[8]Ex 2 tab 8 p 17.
Its onset is more insidious and gradual than bacterial meningitis. While its onset can sometimes be rapid,[9] the symptoms of cryptococcal meningitis typically develop over a period of at least two to four weeks.[10] However in that period symptoms may not be sufficiently present to be recognised.[11] It is frequently not diagnosed in the early presentation of a patient because it is a chronic low-grade inflammatory disturbance until the later stages of the illness.[12]
[9]Ex 2 tab 12 p 47.
[10]Ibid.
[11]T10-27 L47.
[12]Ex 14B p 3.
The classical symptoms of cryptococcal meningitis are chronic headache and meningism, which is typically indicated by neck stiffness,[13] with the patient unable to flex the neck forward so that the chin touches the chest.[14] Other cardinal features of meningitis are aversion to light, nausea and vomiting and raised temperature.[15]
[13]Ex 2 tab 8 p 17.
[14]Ex 2 tab 12 p 47.
[15]Ibid. While the consensus of the experts at trial was that raised temperature is a cardinal symptom, Harrison’s Text Book of Internal Medicine (Ex 2 tab 3) suggests fever is usually absent.
Diagnostic investigation of cryptococcal meningitis usually includes microbiological analysis of cerebrospinal fluid taken by a lumbar puncture[16] performed in hospital after specialist referral.[17] Treatment includes repeated lumbar punctures to relieve intracranial pressure and an initial course of up to six weeks of intravenous antifungal medication, using amphotericin B and 5-flucytosine, followed by a prolonged course of an oral anti fungal drug.[18]
[16]Ex 2 tab 8 p 17; Ex 2 tab 8 p 9.
[17]Ex 2 tab 17 p 9.
[18]Ibid.
Persons with illnesses that reduce existing immunity, such as AIDS and organ transplant patients, contract it most commonly. However about 30 per cent of patients who contract the condition are not immunosuppressed.[19] The plaintiff was such a patient. Among patients who are not immunosuppressed the mortality rate, with treatment, is about 25 to 30 per cent and of those who are cured, 40 per cent are left with significant neurological deficits.[20]
[19]Ibid.
[20]Ex 2 tab 13 p 57; Ex 2 tab 15 p 74.
Delay in diagnosis and treatment of cryptococcal meningitis substantially increases the morbidity and mortality of the disease.[21] For this reason it is a condition that is emphasised in clinical teaching at both undergraduate and postgraduate levels in general practice.[22] If neurological features have developed before the commencement of treatment they are unlikely to be reversed.[23] Thus while delayed diagnosis and treatment might save the patient’s life, the patient is likely, as here, to suffer permanent disability.
Progression of the plaintiff’s condition in brief
[21]Ex 2 tab 33 p 329.
[22]Ex 2 tab 12 p 46.
[23]Ex 2 tab 13 p 58.
In early September 2008 the plaintiff was suffering headaches and a sore neck. She perceived she had a musculo-skeletal problem and attended upon a chiropractor on 5, 8 and 11 September.
On 12 September she consulted the defendant who advised her to take simple analgesia and continue with chiropractic or physiotherapy treatment.[24]
[24]There is a factual dispute as to which of those two forms of treatment the defendant told the plaintiff to continue with.
The plaintiff attended upon her chiropractor later that day, and on 15 and 17 September 2008, but her headaches and neck pain persisted.
She consulted the defendant again on 18 September 2008. A CT scan was ordered and it detected some irregularities with the cervical spine. The defendant discussed the scan with the plaintiff the following day. The defendant perceived the scan confirmed the plaintiff’s problem was musculo-skeletal and she prescribed additional medication for pain relief. The plaintiff alleges that as at the consultations of 18 and 19 September the defendant should have perceived a more sinister condition was involved and urgently referred the plaintiff for specialist assessment. This is the nub of the case.
The plaintiff attended a physiotherapist on Tuesday 23 September 2008.
On Wednesday 24 September her condition had declined so dramatically that she was conveyed by ambulance to Cairns Base Hospital. However after examination and the administration of some tests she was discharged. The plaintiff initially alleged there was negligence by Cairns Base Hospital during this visit, making the State of Queensland the second defendant in her claim. However that aspect of her claim was no longer pursued at the time of trial.
The defendant next saw the plaintiff on Thursday 25 September 2008, by which time the plaintiff’s health had dramatically declined in comparison to her state when she had last seen the defendant almost a week earlier on Friday 19 September. The defendant immediately arranged for the plaintiff’s admission to Cairns Private Hospital. Diagnosis of cryptococcal meningitis occurred the following day after cerebral spinal fluid collected in a lumbar puncture tested positive for cryptococcal infection.
The intensive and prolonged treatment which ensued at Cairns and Townsville Hospitals saved the plaintiff’s life but her illness left her with sensorineural hearing loss, cortical blindness, impaired balance, altered sensation and discomfort in her lower limbs and fingertips and adjustment disorder with depressed mood.
The duty owed
The duty owed to the plaintiff by her doctor was effectively the same in contract and tort.
In contract the primary duty owed by a medical practitioner is the duty “to exercise reasonable care and skill in the provision of professional advice and treatment.”[25] The duty in tort was described by the High Court in Rogers v Whitaker[26]:
“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.” (citations omitted)
[25]Breen v Williams (1996) 186 CLR 71, 103-104.
[26](1992) 175 CLR 479 [5].
One of the ways a doctor is called on to exercise skill and judgment is to determine whether a patient ought be referred for specialist assessment. Failure to refer a patient for further investigation or consultation can potentially constitute a breach of duty.[27]
[27]See for example, Tran v Lam NSWCA No 20359/96, 20 June 1997; Boehm v Deleuil [2005] WADC 55; Kalokerinos v Burnett NSWCA No 40243/95, 1 November 1995.
While there are a variety of alleged shortcomings in the care and skill exercised by the defendant, the key allegation is that the failure to refer the plaintiff for specialist assessment was a breach of her duty to exercise reasonable care and skill in the provision of advice and treatment to the plaintiff.
The alleged breaches
The plaintiff pleaded the damage to the plaintiff’s health was caused or materially contributed to by the negligence and or breach of contract of the defendant.[28] By way of particulars thereof it was pleaded the defendant:
[28]Amended Statement of Claim [38].
(a) Failed to obtain a complete history from the plaintiff;
(b) Failed to perform any or any adequate clinical examinations;
(c) Failed to recognise the significance of the plaintiff’s deteriorating clinical features;
(d) Failed to recognise that the plaintiff’s clinical features were deviating from those of a persistent musculo-skeletal condition;
(e) Failed to refer the plaintiff for further assessment in circumstances where the result of the CT scan of the cervical spine did not sufficiently explain why the plaintiff was suffering from the symptoms reported;
(f) Failed to appropriately refer the plaintiff either to a private neurologist or general physician or to a hospital emergency department for urgent assessment.
The alleged failure of critical causal importance was the failure to refer. For that reason a determination of the true state of the plaintiff’s symptoms when she consulted the defendant – a topic about which there is significant evidentiary conflict – is of pivotal importance to the outcome of this case. Even if the defendant conducted professionally incompetent consultations that would not be to the point if competently conducted consultations would not have identified symptoms suggesting a need to refer the plaintiff.
Whether the causally critical non-referral involved a breach necessarily turns upon whether the defendant, exercising reasonable care and skill, should have referred the plaintiff. Relevantly to that issue, the essence of the other pleaded failures is that the defendant failed to properly consult and examine the plaintiff and recognise the potential presence of a condition, other than a musculo-skeletal disorder, of sufficient seriousness to warrant referral for urgent specialist assessment.
Determining the alleged breach of duty
The determination of whether the defendant breached her duty to exercise reasonable care and skill in the provision of professional advice and treatment is subject to the general principles in s 9 of the Civil Liability Act 2003 (Qld) (“CLA”):
“9 General principles
(1) A person does not breach a duty to take precautions against a risk of harm unless—(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.”
The plaintiff does not allege the defendant should actually have foreseen that the plaintiff may have been suffering from cryptococcal meningitis. Rather, it is in effect contended, the defendant ought reasonably have known that the plaintiff’s clinical features were not attributable to a musculo-skeletal condition and indicated the presence of a potentially serious condition involving the central nervous system. It is further contended in effect that there was a not insignificant risk of grave harm to the plaintiff’s health if the precaution was not taken of referring the plaintiff to a neurologist, general physician or emergency department for urgent specialist assessment.
Relevance of Expert Evidence of Acceptable Medical Practice
Evidence was adduced at trial of whether what was done by the defendant was consistent with acceptable medical practice. Such evidence is relevant to the assessment of whether there has been a breach of duty but it does not define the content of the duty. It is not determinative of the appropriate standard of care. That is a matter for the courts to adjudicate upon.[29]
[29]Rogers v Whitaker (1992) 175 CLR 479, 487.
However evidence of compliance with acceptable medical practice may ground a defence where causal liability is otherwise proved.[30] That defence is contained in s 22 of the CLA which provides:
“Standard of care for professionals
(1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.
(2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law.
(3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.”
[30]See Tobler v Halverson (2007) 70 NSWLR 151.
The plaintiff submits s 22(5) has the effect of excluding a s 22 defence where the alleged breach involves a failure to refer a patient for more expert examination or treatment. However that sub-section relates to giving or failing to give a warning, advice or information “in relation to the risk of harm to a person, that is, associated with the provision by a professional of a professional service.” Section 22(5) is apt to those cases where the breach otherwise arising flows from a failure to properly provide a patient with sufficient information to allow the patient to make an informed decision about the risk of harm in undergoing a particular medical service. It is not apt to a case like the present where the gravamen of the breach lies in failing to identify and warn the patient of the need for the patient to be provided with a medical service by another.
The evidence of expert opinion adduced at trial is thus relevant not only to the assessment of whether there has been a breach of duty but also to whether or not the defendant has a s 22 defence.
The Expert Evidence
The parties called a number of expert witnesses relevant to the progress and diagnosis of cryptococcal meningitis and the competency of the defendant’s assessment and management of the plaintiff’s condition.
The plaintiff called:
(a)Associate Professor Damon Eisen, a consultant infectious diseases physician who has specialised in infectious diseases since 1991;[31]
(b)Dr John Vinen, an emergency physician since 1986;[32] and
(c)Dr John Turnbull, an experienced general practitioner of over 40 years standing.[33]
[31]Report of 22 December 2009 Ex 2 tab 8; Report of 10 February 2010 Ex 2 tab 10; Joint Report with Professor Whitby of 11 June 2013 Ex 2 tab 17 and Report of 22 October 2013 Ex 15.
[32]Report of 8 February 2010 Ex 2 tab 18 (a report dealing with the treatment by Cairns Base Hospital rather than by the defendant); Report of 20 March 2012 Ex 2 tab 19 and Memorandum of Conference of 30 August 2013 Ex 2 tab 35.
[33]Report of 18 January 2010 Ex 2 tab 1; Report of 17 September 2010 Ex 7; Report of telephone conference of 20 January 2012 Ex 2 tab 5; Report of 29 May 2012 Ex 8; Report of telephone conference of 2 September 2013 Ex 2 tab 6 and Report of 18 October 2013 Ex 16.
The defendant called:
(a)Professor Michael Whitby, an infectious diseases physician for over 20 years;[34]
(b)Dr John Cameron, a consultant neurologist who has practised as a specialist neurologist since 1979;[35] and
(c)Dr Robert Kable, an experienced general practitioner of nearly 30 years standing.[36]
[34]Report of 11 January 2011 Ex 2 tab 12; Report of 21 June 2011 Ex 2 tab 13; Report of 26 July 2011 Ex 2 tab 14; Report of 13 August 2012 Ex 2 tab 15; Joint Report with Dr Eisen of 11 June 2013 Ex 2 tab 17 and Report of 9 September 2013 Ex 17.
[35]Report of 10 August 2010 Ex 14A (a report directed predominantly to the plaintiff’s present and future condition); Report of 5 March 2012 Ex 14B and Report of 24 February 2013 Ex 14C.
[36]Report of 24 February 2010 Ex 5; Report of 17 August 2012 Ex 26A; Report of 4 January 2013 Ex 6 and Report of 4 October 2013 Ex 22.
Some of the expert reports were obviously gathered at a stage when it was still intended to take the plaintiff’s case against the State of Queensland to trial. While the events at the Cairns Base Hospital on 24 September are relevant it is unnecessary to reach a concluded view on the opinions of the experts in respect of the adequacy of care provided by the hospital on that date.
As will be seen, the utility of much of the expert evidence about the defendant’s competency turns upon whether, as a matter of fact, the defendant’s consultations with the plaintiff of 18 and 19 September occurred largely as described by the defendant or largely as described by the plaintiff and her mother, who gave evidence in support of her daughter’s case.
The contest of fact
By the time the plaintiff’s illness was diagnosed on 26 September, and probably by the time of her attendance at the Cairns Base Hospital on 24 September, it was too late to prevent the permanent damage to health that followed. Thus, even if the Cairns Base Hospital staff were negligent in discharging the plaintiff, rather than pursuing diagnostic investigation apt to detect meningitis and trigger appropriate treatment, it is unlikely there would be a causal link between that negligence and the harm suffered.
The plaintiff asserts however that her permanent disabilities would likely have been avoided had she been referred for specialist assessment back on 18 or 19 September when seen by the defendant. She contends that by then her presenting symptoms were so sufficiently advanced that her doctor, if exercising reasonable care and skill, should have immediately referred the plaintiff to a private neurologist or general physician or hospital emergency department for urgent assessment and, had that occurred, it is likely that successful diagnosis and treatment would then have ensued.
The defendant accepts there was a significant decline in the plaintiff’s condition but asserts that decline only became apparent during the week after the consultations of 18 and 19 September. The defendant argues the plaintiff has in hindsight blurred the timing of the marked onset of her condition, which was underway when the defendant saw her on 25 September, with her earlier consultations with the defendant of 18 and 19 September. The defendant submits the plaintiff and her mother have overstated the true extent of the symptoms the plaintiff was in fact suffering on 18 and 19 September 2008. The defendant submits that at that stage the plaintiff was only complaining of a sore neck, sometimes associated with headache and dizziness. The defendant submits the plaintiff’s symptoms were not then so severe as to have put the defendant on notice of the need to refer the plaintiff for specialist assessment.
The defendant alternatively submits that had the plaintiff’s symptoms been as extreme as the plaintiff says they were as at 18 and 19 September 2008 that would indicate the process of irreversible neurological harm was already underway, making it unlikely the permanent injury to health suffered by the plaintiff would have been avoided had treatment then been initiated.
The resolution of this case turns to a large extent upon what symptoms the plaintiff told the defendant she had, and what symptoms the defendant should have detected, in her consultations with the plaintiff. These aspects of the case are important because the determination of what the defendant knew or should have known about the plaintiff’s symptoms necessarily informs the determination of whether she should have referred the plaintiff for specialist assessment on 18 or 19 September.
Assessments of the reliability of evidence about the plaintiff’s consultations with the defendant do not fall to be made in a vacuum. The evidence of expert witnesses about cryptococcal meningitis[37] has background relevance to that assessment. Further, the plaintiff also interacted with other medical professionals during the relevant era and those consultations provide some assistance in determining what likely occurred in the consultations with the defendant.
[37]Some of which has already been summarised above.
B. CHRONOLOGICAL REVIEW AND FINDINGS
It is useful to review the plaintiff’s consultations with the defendant and other medical professionals chronologically.
That exercise necessarily involves some consideration of the contemporaneous documentary records of the defendant and the other medical professionals. However their records are not determinative. Medical records seldom purport to be a verbatim report of all that was said or done between practitioner and patient. Dr Vinen, an emergency physician who was particularly critical of some of the note-taking by doctors in this case, indicated the guiding criterion about what to note is relevance, so that a practitioner should ordinarily document “the significant positives and significant negatives”.[38] This accords with the defendant’s practice of making a note of anything that is “positively significant” and anything “negatively significant” to the same extent.[39]
[38]T4-15 LL2-6.
[39]T9-55 L7.
The risk a medical practitioner might fail to record information wrongly perceived to be irrelevant or of no significance is self-evident. However where error as to the significance or relevance of information is unlikely because the information is obviously significant or relevant, then the fact it is not recorded may support an inference that such information was not provided. Much will depend on the surrounding circumstances.
June 2008 consultation with defendant
Before dealing with the sequence of events of September 2008 something ought be said of the earlier contact between the parties.
The plaintiff first consulted the defendant on 18 July 2007 and had a follow up appointment on 25 July 2007. Those consultations were unconnected with the development of her serious illness the following year. There is a dispute as to when it was in the following year that the plaintiff next saw the defendant.
The plaintiff alleges she consulted the defendant in June 2008 complaining of rushes of blood to the head and dizzy spells.[40] The defendant has no recollection of such a consultation and the defendant’s medical practice has no record of the alleged consultation.[41] There is no Medicare billing record relating to the plaintiff on that date.[42] In contrast, the defendant’s medical practice has electronic records of each of the consultations that the plaintiff alleges occurred with the defendant in September 2008.
[40]T1-35 L3.
[41]T8-53 L30.
[42]T8-54 L20.
The plaintiff asserts of the alleged June consultation that after the defendant checked the plaintiff’s age the defendant said the plaintiff’s symptoms were probably the beginnings of menopause. On the plaintiff’s account, the defendant allegedly observed the plaintiff was six months overdue for a mammogram and wrote a contact for Breast Screen Queensland on a sticky note that she handed to the plaintiff. The plaintiff recalled she was in a hurry in departing the practice and the receptionist had her sign a form but did not request payment.[43]
[43]T1-35 L15.
The consultation is surplusage to the plaintiff’s case and thus an unusual event to concoct. It is also unlikely that on this occasion the plaintiff actually visited a different doctor and is mistaken about that. In the absence of a record of the consultation it is unsurprising, if the consultation occurred, that the defendant cannot recall it. On the other, hand it is surprising no record, not even of Medicare billing, exists in respect of the consultation.
Ultimately it is unnecessary to resolve this anomaly in the evidence. The plaintiff described the symptoms she was suffering on this visit as the first symptoms, inferentially of cryptococcal meningitis, noticed by her. However none of the expert evidence suggests the symptoms of the illness are likely to have had material onset as early as that. Even if the consultation happened it has no apparent relevance to the alleged negligence of September 2008. Further, if it did occur, the fact that the defendant’s practice has no record of it has no material bearing on the reliability of the defendant’s account of the consultations of September 2008. It is common ground the September consultations did occur and the defendant does have records of them.
5 September 2008 (Friday) consultation with chiropractor
The material chain of medical consultations began on 5 September when the plaintiff consulted chiropractor Dennis Collis at North Cairns Chiropractic complaining of neck pain and headaches. It is common ground that Mr Collis did not perform a manipulation but arranged for the taking of an x-ray of the plaintiff’s cervical spine, thoracic spine, lumbar spine and pelvis.
During this attendance the plaintiff endorsed a new patient form indicating that she was seeking help for her neck, shoulders and back.[44]
[44]Ex 4 v 1 tab 3 p 166.
The plaintiff recalls in addition to having an “extremely sore neck” and “getting headaches periodically on and off”, she was having rushes of blood and dizziness.[45] According to the plaintiff she informed Mr Collis she was experiencing “some rushes of blood and some dizzy spells.”[46] Mr Collis made no record of and gave no evidence of being informed to that effect. Further, in a form completed by the plaintiff, where she ticked a number of ailments that were affecting her, she did not tick “dizziness”, notwithstanding that it was listed directly beneath an entry, “headache/migraine”, which she did tick.[47] The plaintiff was on later dates to mention flushing to the face and dizziness in her visits to the defendant. It is likely she did not report rushes of blood or dizziness to Mr Collis on 5 September and may have confused the detail of when and to whom she mentioned those symptoms.
[45]T1-36 L25.
[46]T1-36 L34.
[47]Ex 4 v 1 tab 3 p 172.
Mr Collis recorded the plaintiff’s major complaint as “neck pain, headaches and shoulders” with an onset from “early July.”[48] Above this entry Mr Collis noted “sub occipital” and reduced “strength.” The latter entry, he explained, recorded a general complaint of decreased strength.[49] As to the former, which is a reference to the base of the skull, Mr Collis initially said it meant the plaintiff had discomfort there.[50] On the other hand in cross-examination he agreed the note “sub occipital” described the location of the plaintiff’s headache, which he said was where “most cervicogenic headaches” are caused.[51] Mr Collis appeared uncertain as to whether his noted reference to “sub occipital” meant his patient had discomfort there or had a headache there.
[48]Ex 4 v 1 tab 3 p 170.
[49]T7-44 L40.
[50]T7-44 L35.
[51]T7-52 L45.
The plaintiff testified that she had problems with her right leg in the ensuing weeks and there was a possibility that some pain in the leg did exist when she consulted Mr Collis on 5 September. However she was uncertain about that and was uncertain about whether she told Mr Collis of it.[52] Mr Collis noted that the plaintiff’s type of pain was “aching” and it referred to her right arm and right leg.[53] However he was not asked in evidence to explain what these entries meant. In interpreting another of his records from that date Mr Collis gave evidence the entry meant that there was no deficiency in leg strength although the plaintiff had a tendency to stagger to the right when walking.[54]
[52]T2-14 L30.
[53]Ex 4 v 1 tab 3 p 170; T7-45 LL11-24.
[54]Ex 4 v 1 p 169; T7-46 L35; T7-47 L26.
These entries likely relate to the plaintiff’s musculo-skeletal condition and not to a symptom of cryptococcal meningitis. Dr Whitby, an infectious disease specialist, opined that the detection by Mr Collis of pain in the right arm and right leg on 5 September 2008 was unlikely to be related to cryptococcal meningitis and more consistent with neurological irritation around the lumbosacral region of the spine.[55]
[55]Ex 17 p 9.
8 September (Monday) consultation with chiropractor
On 8 September the plaintiff again consulted Mr Collis. It is common ground that he performed a manipulation on the plaintiff’s cervical spine, thoracic spine, lumbar spine and pelvis.
11 September (Thursday) consultation with chiropractor
On 11 September 2008 the plaintiff again consulted Mr Collis. It is common ground Mr Collis again performed a manipulation on the plaintiff’s cervical spine, thoracic spine, lumbar spine and pelvis.
The plaintiff testified that her further visits to Mr Collis did not improve her symptoms and her symptoms steadily became worse.[56]
[56]T1-37 L15.
12 September (Friday) consultation with defendant
The plaintiff consulted the defendant unaccompanied on 12 September 2008.
The defendant’s notes of the consultation are as follows:
“Friday September 12 2008 09:08:33
Dr Kaylene Ferguson
Paps to date
Mammogram due June this yr
Given another referralNil FH ca bowel, nil bowel changes
Intermittent neck pain, worse 6/52, causing headache and flushing to face
Chiropractor did XR C spine, showed loss of normal curvature
Is finding that massage is resolving symptom
Nil head injury, nil neurological def, nil visual disturbance
FH CVA both Grandmas
BP 118/80
IMP
Cervical spondylosis
Plan
Simple analgesia
Cont physio
R/V if any changes or concerns.”
The following matters are common ground on the pleadings. The plaintiff reported to the defendant that she had been suffering from neck pain that had been worsening over the past six weeks. She indicated she consulted a chiropractor on a number of occasions, that the chiropractor had performed an x-ray of her cervical spine and that the x-ray had shown loss of the normal curvature of her lumbar spine. The defendant recorded the plaintiff’s blood pressure as 118/80mmHG but did not otherwise perform a medical examination on the plaintiff. The parties are otherwise in dispute as what else occurred at the consultation.
The plaintiff testified that she told the defendant:
“I was having rushes of blood to the head, I had dizzy spells, I had a very sore neck, I was getting headaches and I was occasionally losing strength in my right leg.”[57]
[57]T1-37 L26.
The plaintiff testified that she told the defendant she was taking Panadol but there was no further discussion on medication other than that and she was not given any prescription.[58] The defendant recalled the plaintiff mentioned she was sensitive to medication and was not taking much or any analgesia.[59]
[58]T1-39 LL24-31.
[59]T8-56 L45.
The defendant testified she had a partial recollection of the consultation and in the process of giving evidence refreshed her memory from her clinical notes. She testified the plaintiff told her:
“She…had neck pain. She said the neck pain was intermittent. It had been worse over a six week period and the neck pain was causing headache and a flushing to the face, that she’d been to see the chiropractor and that he had done an x-ray of her cervical spine, and that had showed some loss of normal curvature of the spine that initially going to the chiropractor helped, and simple things like massage helped.”[60]
[60]T8-55 LL33-41.
The defendant acknowledged she did not actually see the x-ray that the chiropractor had done and had in effect acted upon the plaintiff’s information that the x-ray showed some loss of normal curvature of the spine.[61] She explained that is a fairly common finding.[62]
[61]T8-79 LL15-22.
[62]T8-79 L21.
When pressed in cross-examination about the lack of detail in her notes about the headache and the flushing to the face the defendant explained they “were occurring with the neck pain or from the neck pain.”[63] She conceded that she viewed them as secondary to the primary symptom of neck pain.[64] Such a view is not inconsistent with the plaintiff’s own recollection. For instance, the plaintiff agreed that she told the defendant her neck pain was sometimes associated with headaches.[65] It was suggested to the defendant that she was not overly concerned about the symptom of flushing to the face because she had, in the alleged consultation of June 2008, concluded the plaintiff was probably menopausal.[66] The defendant rejected that suggestion.
[63]T8-77 L30.
[64]T8-77 L35.
[65]T3-35 L42.
[66]T8-78 L1.
The defendant gave evidence she asked the plaintiff questions relating to neck pain and headache, establishing that the plaintiff had no relevant history of head injury, neurological deficit or visual disturbance.[67] Enlarging upon her note to that effect she explained she would have asked the plaintiff whether she had a cough or cold, any recent sinusitis, any fever or rash, any light bothering the eyes or any vomiting.[68] She explained the purpose of asking such questions:
“It was just a general screen for neck pain and headache to make sure there aren’t any red flags or anything more serious that might be causing the pain… If she’d had a head injury or trauma, that would be significant. If she’d had a cold, a sinusitis or mouth ulcers, those things can precede meningitis. Some people have migraines, and obviously things like rash and that can occur in meningitis as well – fever or systemic illness.”[69]
[67]T8-56 L5.
[68]T8-56 L14.
[69]T8-56 LL24-33.
The plaintiff also testified that by this consultation she was tending to move her shoulders, turning with her upper body rather than moving her neck and causing it pain.[70] However she volunteered in cross-examination that her head and neck movement were “still relatively good.”[71] The defendant did not physically test the range of movement of the plaintiff’s neck.
[70]T1-39 L7.
[71]T3-47 L46.
In cross-examination the defendant asserted she would have asked about weakness in the course of her neurological screening questions.[72] She acknowledged that where there is concern about a neurological problem it would be a standard question to enquire whether a patient had noticed any numbness, weakness or clumsiness in the arms or legs.[73] However the defendant did not suggest she made an enquiry of that kind, explaining she was not thinking more broadly beyond the symptoms of neck pain associated with intermittent headache as suggestive of neurological symptoms.[74]
[72]T9-10 L5.
[73]T9-10 L16.
[74]T9-10 L32.
The defendant was asked if she formed any view about what the nature of the plaintiff’s condition was and she replied:
“I thought that she had a probable musculo-skeletal insult to her neck. It could be cervical spondylosis, that she was taking very little or an inadequate amount of analgesia for that, that she was continuing to work and she sounded like a hard worker and she had stressors at home, that she’d been seeing a chiropractor which I thought might be aggravating her neck rather than helping.”[75]
[75]T8-57 L35.
The above reference to “stressors at home” derived from the plaintiff having mentioned she had difficulties at home with her husband, who she wanted to leave, and with her teenage son, although she did not enlarge on what the difficulties involving the son were.[76] The defendant explained those matters were not recorded in her notes because of the risk of such entries being used in family court proceedings.[77] When cross-examined about why she did not at least write “stress” in her notes she explained she is always reluctant to write that anything is “just caused by stress”.[78] In any event the plaintiff accepted, contrary to her Amended Reply,[79] that she did speak to the defendant about the stress at home.[80]
[76]T8-57 L14.
[77]T8-57 L22.
[78]T8-75 L10.
[79][2](g).
[80]T3-45 L30.
There was a divergence in witness recollection about some aspects of this consultation. Some of the differences are of minor significance but have some relevance to credibility.
The defendant’s notes make reference to a “mammogram” having been due in the middle of 2008 and to the fact that the plaintiff was given another referral.[81] The defendant gave evidence to the effect that she would have given the plaintiff a referral for breast screening.[82] When it was put to the plaintiff in cross-examination that she was given a referral for a mammogram at this consultation she denied that a mammogram was even discussed at the consultation, maintaining they had a discussion about a mammogram in the alleged consultation of June 2008.[83] The defendant’s use of the word “another” in her note about the referral is consistent with the prospect of the defendant having previously given the plaintiff a referral for a mammogram however the defendant denied having given the plaintiff a referral on a prior occasion.[84] Regardless of whether there had been a consultation in June the content of the doctor’s notes of 12 September renders it inherently implausible a referral was not discussed and provided during the consultation.
[81]Ex 4 v 1 tab 1 p 14.
[82]T3-55 L14; T3-55 L23.
[83]T2-12 LL30-45; T3-49 L38.
[84]T8-72 L6.
The defendant recorded the plaintiff had no bowel changes whereas the plaintiff denied having been asked about that on 12 September.[85] The plaintiff’s denial of a matter she would not have had any certainty of recollection about was not credible. It is unlikely the defendant concocted such an entry.
[85]T3-47 L25.
The defendant’s notes recorded that massage was resolving the plaintiff’s symptoms, but in cross-examination the plaintiff denied telling the defendant that.[86] Again this was not a credible denial. The repetition of the plaintiff’s visits to the chiropractor suggests she found his treatment beneficial. I am satisfied the defendant’s entry on this topic is not an invention, although, considered in context, the use of the word “resolving” was likely meant in the sense of giving temporary relief.
[86]T3-38 L17.
There is imprecision where in recording the future treatment plan the defendant’s notes record “Cont physio”. There had not yet been an attendance upon a physiotherapist by the plaintiff and thus no physiotherapist’s treatment to continue. There had however been repeated chiropractic manipulation and the plaintiff continued to attend the chiropractor subsequent to the consultation with the defendant on 12 September. The plaintiff rejected the suggestion that the defendant told her she should try a physiotherapist.[87] Had she understood the defendant had recommended she should see a physiotherapist I accept she likely would have seen one. The defendant gave evidence that she ordinarily would not refer patients to alternative health practitioners such as chiropractors.[88] The defendant even testified she thought that chiropractic treatment might be aggravating rather than helping.[89] That recollection seemed speculative. It is not reflected in her notes, which specifically included the words, “is finding that massage is resolving symptoms.”
[87]T3-49 L27.
[88]T8-58 L5; T9-3 L35.
[89]T8-57 L36.
The probability is that there has been some imprecision in the notes made by the defendant on this topic and it is likely, despite the defendant’s professed disposition against recommending chiropractic services, that the defendant told the plaintiff if the massage or manipulation was helping then she should continue with it.
I bear that imprecision in note-taking in mind in considering the reliability of the defendant’s notes and recollection of the following more significant matters of divergence between the plaintiff and defendant.
The plaintiff testified she complained to the defendant of dizziness but such a symptom was not pleaded by the plaintiff in respect of this consultation. Nor was such a symptom noted by the defendant at this consultation. The defendant recorded detail such as “flushing to the face” during this consultation. At the consultation of 18 September she did record the fact the plaintiff was getting dizziness. It is therefore unlikely the defendant would have failed to record dizziness had the plaintiff actually complained of it during the consultation of 12 September. It is more likely the plaintiff’s memory is unreliable as to the timing of the onset of dizziness and she did not mention it at the consultation of 12 September.
As to the general severity of the plaintiff’s symptoms, in cross-examination the plaintiff asserted she had told the defendant she had an “extremely” sore neck and had “extremely” bad headaches.[90] She testified that her headaches fluctuated between quite bad and into “something dull” and they were increasing and were “bad quite a lot.”[91] She also asserted that, as at 12 September, her neck was “sore all the time”.[92] That assertion is at odds with the defendant’s notation of “intermittent” neck pain. Further, the plaintiff went to the Cairns Amateurs racing carnival the following day. The plaintiff’s symptoms did eventually become extreme but it is surprising, if the plaintiff’s recollection of her then degree of suffering is accurate, that she went to the Amateurs the following day. Her explanation for this is that she made a commitment to go and had paid money to go but did not enjoy it.[93] It is difficult to be precise about degrees of pain, but I do not accept the plaintiff’s reporting of her then degree of suffering to the defendant suggested it was as extreme as described by the plaintiff before me.
[90]T3-36 LL40-48.
[91]T3-37 LL40-48.
[92]T3-38 L4.
[93]T3-38 L10.
The plaintiff gave evidence that by 12 September she was occasionally losing strength in her right leg.[94] She testified it was not then so bad that she could not use her motor vehicle pedals safely,[95] although she would have to pull up on occasion because of rushes of blood to her head and dizziness.[96] The plaintiff claims to have told the defendant about the loss of strength to her right leg[97] and about having to pull her vehicle over because of rushes of blood to her head and dizziness.[98] She was uncertain whether she told the defendant there was pain to her leg.[99] The plaintiff asserts the defendant asked her no questions about the loss of strength to the plaintiff’s leg.[100] The defendant made no notes of such a symptom and testified nothing was said about the plaintiff having to pull her vehicle over.[101] The plaintiff undoubtedly did experience a loss of leg strength eventually. However if the plaintiff had mentioned such symptomology during the consultation of 12 September it is surprising the defendant not only failed to note it but also failed to ask questions about it. The likely explanation is the topic was not mentioned at this consultation and the plaintiff’s recollection of the timing and degree of onset of the symptom is unreliable.
[94]T1-38 L3.
[95]T1-38 L4.
[96]T1-38 L1.
[97]T1-37 L26.
[98]T1-38 L10.
[99]T2-16 L7.
[100]T2-15 L42.
[101]T9-46 L5.
12 September (Friday) consultation with chiropractor
Later on 12 September the plaintiff again consulted Mr Collis. It is common ground that he again performed a manipulation on the plaintiff’s cervical spine, thoracic spine, lumbar spine and pelvis.
13 September (Saturday) attendance at Cairns Amateurs
The plaintiff attended the Cairns Amateurs racing carnival on Saturday 13 September 2008 and saw her mother there.[102] Her mother testified that the plaintiff at times had to support herself on a table or a chair when she stood up.[103]
[102]T1-40 L45.
[103]T-54 L23.
15 September (Monday) consultation with chiropractor
On 15 September the plaintiff again consulted Mr Collis, reporting that her neck was still sore. It is common ground that Mr Collis performed a manipulation on the plaintiff’s cervical spine, thoracic spine, lumbar spine and pelvis.
Mr Collis’ notes of the consultation recorded that the plaintiff was still sore.
In cross-examination Mr Collis agreed that the plaintiff did not complain of headache on 15 September.[104] That evidence was unconvincing. It was obviously not premised on an independent recollection of each of the complainant’s visits and what she told Mr Collis. Rather it appeared to be premised merely upon the absence of a specific reference to a headache in the small space allocated in his pro forma consultation record of the plaintiff’s repeat visits. Mr Collis is unlikely to have had a reliable recollection whether or not the plaintiff complained of headache on 15 September.
[104]T7-51 L23.
17 September (Wednesday) consultation with chiropractor
On 17 September 2008 the plaintiff again consulted Mr Collis. It is common ground she reported her neck was still sore and that she was suffering from headaches. Mr Collis again performed a manipulation on her cervical spine, thoracic spine, lumbar spine and pelvis and certified her unfit for work from 17 September 2008 to 21 September 2008.
The plaintiff was certain that she at some point told Mr Collis about a loss of strength in her right leg but was uncertain when she told him of it, explaining the loss of strength in her right leg had become extremely regular by around 18 September.[105] The plaintiff testified that by 17 September she told Mr Collis her leg was collapsing on occasion, although she was unsure whether she had told Mr Collis it was giving her a problem with walking.[106] Mr Collis made no record of and gave no evidence that he was told of a loss of strength in the plaintiff’s right leg or of the leg occasionally collapsing.
[105]T2-16 LL15-47.
[106]T2-17 LL10-29.
According to the plaintiff she was experiencing nausea by 17 September and had vomited on the evening of 16 September however she made no mention of this to Mr Collis.[107] Nor in her evidence-in-chief did she make reference to nausea as one of her symptoms when describing her symptoms as at 17 September.[108]
[107]T2-19 LL14-27.
[108]T1-41 LL20-26.
Mr Collis’ brief notes of the consultation on 17 September recorded merely that the plaintiff was still sore and had a headache.[109]
[109]Ex 4 v 1 p 171.
In contrast to that benign entry, the plaintiff’s evidence-in-chief of her symptoms as at that time was to this effect:
“…my symptoms had increased quite a deal. I [was] still having rushes of blood and dizziness but more frequently. The pain in my neck and head had increased dramatically and I – for that particular appointment with Mr Collis, when I had initially tried to make the appointment, he had not had availability and I had particularly asked him if – I said – told him that things were extremely bad and I really asked him if he could squeeze me in, which he did. But – yeah, so it had all increased substantially.”[110] (emphasis added)
[110]T1-41 L20-26.
In cross-examination the plaintiff emphasised she had stressed “how much worse things had become” to Mr Collis, saying the neck pain and headaches “had become a lot, a lot worse” and the loss of strength in her right leg had “become much more frequent.”[111] She swore that the loss of strength in her right leg at this stage was occurring several times a day and actually involved unsteady movement.[112]
[111]T3-51 LL34-40.
[112]T3-51 L45—T3-52 L20.
The plaintiff did not plead or give evidence that she informed Mr Collis her symptoms had degenerated to the substantial extent she described in her evidence.
It is common ground that Mr Collis did certify the plaintiff unfit for work from 17 to 21 September, which is consistent with the evidence of the plaintiff that whilst she attended work for a brief period on 17 September she was not well enough to continue working.[113]
[113]T1-41 L43.
It is unlikely the plaintiff represented to Mr Collis her decline was as dramatic or as extreme at this stage as she represented in evidence. It was a recurring feature of the plaintiff’s evidence that her condition was more extreme at an earlier stage than any of the medical professionals she consulted appear to have noted or recalled. While the plaintiff may have been quietly stoic about the extent of her suffering, the probability is her condition was not as extreme as early as she in hindsight recollects.
18 September (Thursday) consultation with defendant
On Thursday 18 September 2008 the plaintiff consulted the defendant again.
The defendant’s notes of the consultation are as follows:
“Thursday September 18 2008 10:33:47
Dr Kaylene Ferguson
Neck remains painful
Getting dizziness
Reduced ROM
PlanReasons for contact:
Neck – Pain
Actions:
Diagnostic Imaging requested: CT cervical spine
Prescription added: STEMZINE TABLET 5mg 1 t.i.d. p.r.n.
Prescription added: PANADEINE FORTE TABLET 500mg/30mg 2q.6.h. p.r.n.
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 2q.6.h. p.r.n.
STEMZINE TABLET 5mg 1 t.i.d. p.r.n.
r/v here immediately after imaging.”
The following matters about the consultation are common ground on the pleadings. The defendant did not perform a physical examination. The defendant referred the plaintiff for a CT scan of her cervical spine and prescribed Panadeine Forte tablets (500mg/30mg to be taken every six hours (two tablets) as required) and stemzine tablets (5mg to be taken three times a day (one tablet) as required). A CT scan was later performed of the plaintiff’s cervical spine. It showed posterior disc bulges at C2/3 and C3/4, a slight posterior bulge at C5/6 and a mild broad based posterior spondylitic protrusion at C6/7. The parties are otherwise in dispute as to what occurred at the consultation with the defendant.
On the plaintiff’s account her estranged husband drove her to the surgery but he remained in the car.[114] She gave evidence that walking caused pain to her neck and head and she walked into the consultation room slower than normal.[115] As against this, the defendant explained it was her usual practice to walk with patients the 10 to 15 steps from the practice waiting room to her consultation room and in the course of doing so she would observe how the patient appeared.[116] She gave evidence she followed that practice on 18 September and that the plaintiff was walking normally.[117]
[114]T1-42 LL10-23.
[115]T1-42 L35; T3-53 L27.
[116]T8-58 LL27-44.
[117]T8-58 L47; T8-59 L7; T9-47 L17.
The plaintiff testified of the consultation:
“I told Dr Ferguson that my symptoms had increased immensely. I – they were the same symptoms, but a lot stronger: rushes of the blood to the head a lot more often, a lot more dizzy spells, losing the strength in my right leg more regularly and severe pain in my neck and particularly the base of my head. I told Dr Ferguson also that I was – I had nausea and I had vomited several times. I did say that I thought this may have been because of the excessive amount of Panadol I was taking, trying – and I was taking some Mersyndol as well, which I’d told her – trying to alleviate the pain, but I was getting no relief from the pain. Dr Ferguson suggested that I get – I have a CT scan and she also suggested that she’d write me a prescription for some stronger medication for the pain and for an anti nausea, and she gave me a referral to North Queensland X-Ray… I told Dr Ferguson at that time that my estranged husband had driven me to the surgery and that he would be able to take me over to North Queensland X-Ray, which is a little distance from the surgery, to have the – the CT scan. I told her I was not – I was not able to drive – I was not in any condition with my symptoms to drive safely… I told Dr Ferguson that I – not – that I had ceased working because I was unable to work, and I told her I was struggling at home…due to the pain.”[118] (emphasis added)
[118]T1-42 L42—T1-43 L27.
The plaintiff’s testimony conveyed the impression there had been a significant decline in her condition since last she had seen the defendant. The defendant said the plaintiff did not report that her symptoms had deteriorated or that her neck pain was severe.[119] Rather the defendant recalls the plaintiff reported her neck was still painful.[120]
[119]T9-4 LL15-27.
[120]T9-47 L25.
Some aspects of the consultation were explored by the plaintiff’s counsel with a view to demonstrating the plaintiff’s condition must have been demonstrably worse.
The fact the defendant prescribed stronger analgesia was highlighted to suggest the plaintiff’s pain must have been worse. The defendant maintained that the plaintiff’s symptoms had not become worse in comparison to 12 September.[121] The implication of her evidence was that she was concerned the plaintiff’s neck was “still painful”, that is, it had not improved and Panadeine Forte would better manage her pain.[122] The expert general practitioners called by both parties testified it is unremarkable, where a patient complaining of pain is advised to take a normal dose of simple analgesia but returns complaining the pain has not been relieved, for a medical practitioner to prescribe a stronger medication to try and obtain relief from the pain.[123]
[121]T9-9 L7.
[122]T9-8 L19; T9-8 L47.
[123]T11-13 L46; T7-19 L2.
The fact the plaintiff was taking time off work was also highlighted to suggest the plaintiff’s condition must have become worse. The plaintiff gave evidence that she told the defendant she had ceased working because of her condition but the defendant had no memory of being given that information.[124] Had the defendant been told the plaintiff had become physically unable to work or drive I accept she would have noted such information and she did not. The topic of the plaintiff not working, albeit not in the context of physical incapacitation, was at the very least discussed the following day when, at the plaintiff’s request, the defendant gave the plaintiff a letter certifying she was unfit for work for a week.[125] The defendant conceded the question of whether or not a person is still working can be a marker of the severity of their symptoms,[126] however the defendant explained she considered avoidance of work would assist in avoiding further aggravation of the condition.[127] The import of the defendant’s evidence on this issue was, in effect, that taking time off work was a sensible reaction to the need to better manage and aid recovery from a painful condition that had not improved, as distinct from it being a reaction to a significantly worsening condition.
[124]T9-15 L18.
[125]T9-31 L46.
[126]T9-15 L11.
[127]T8-63 L44 – T8-64 L7.
The defendant disputes the plaintiff’s need for overnight care.
Overnight inactive care is sought principally to address security and safety issues and other needs arising unexpectedly during the night. However it also is relevant in addressing the plaintiff’s inevitable need for the psychological comfort of knowing she has support to deal with the unexpected during the night.
Assessment of the need for overnight care involves consideration of the “relationship between the additional proposed cost and the anticipated benefit.”[432] The criterion is one of reasonableness, not of what would be ideal.[433] As was observed by Gibbs and Stephen JJ in Sharman v Evans:[434]
“The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight and speculative the cost involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest.”
[432]McNeilly v Imbree [2007] NSWCA 156, 155.
[433]Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 648, 661.
[434](1977) 138 CLR 563, 573.
The defendant contends in effect that funding a prolonged period of inactive sleepover care is unreasonable when weighed against the limited benefit it will deliver, particularly when weighed against less expensive options likely to deliver only slightly less security, slightly less ready assistance and slightly less psychological reassurance during nights. The defendant also emphasised that the plaintiff has been staying overnight in her own residence without a carer present since November 2012, which has been a voluntary circumstance flowing from the plaintiff’s desire to live independently.[435]
[435]T3-3; T3-4.
In her report of February 2011, Ms Murphy opined that the plaintiff would be able to sleep in her own home without a carer present provided the plaintiff has sufficient security and urgent electronic communication aids and equipment in place to maximise her own safety, good security at her residence and a good care and support network.[436]
[436]Ex 9 pp 26-29.
I do not accept that the plaintiff should have no component of overnight care. Applying the cost benefit balancing process discussed in Sharman v Evans I accept the cost of having a carer immediately present for 24 hours a day is not warranted. However the mere provision of electronic security and communication devices falls considerably short of the care required overnight. Such aids may ease the need for the continuous immediate presence of a carer, but the absence of an “on premises” carer for a span as long as 11 or 12 hours does not place enough weight on the needs of the plaintiff or on the benefit of care. A more appropriate balance might be struck if the span of complete absence during the 24 hour cycle were reduced to a shorter, less concerning period in the order of four hours. A period of 12 hours active care and eight hours inactive or sleep-over care is an appropriate balance.
I am fortified in arriving at that view by the existence in the care industry of a rate for inactive care which is much less than the active care rate. The funding model contained in the 2013 rate schedule to Ms Burns’ revised report[437] contemplates a single shift rate of $121.20 for the entire eight hour period from 11 p.m. to 7 a.m. This contrasts with hourly rates for active care from 7 a.m. to 4 p.m. and 7 p.m. to 10 p.m., a total active care period of 12 hours. That structure well reflects the balancing moderation of cost weighed against benefit required by the present exercise.
[437]Ex 3 tab 11 p 207.
I will adopt the 2013 Lighthouse rate schedule. It calculates an annual figure of $281,415, which converts to $5,411.82 weekly.
The defendant urged the benefit of a shared accommodation arrangement wherein a carer would be permanently on site supporting the needs of two or three clients as their needs arise. This model advanced by Mr John Hart, director of Quality Lifestyle Support,[438] incorporates a case manager and supervision of any care regime by a registered nurse. Mr Hart’s evidence was that co-tenancy models utilising duplex or triplex accommodation enable very independent lives to be led by clients of his service, but still enables them to utilise and maximise support options. The defendant submits that this type of arrangement would be beneficial to the plaintiff and that the prospect of the plaintiff entering into such an arrangement for some periods in the future should be a consideration.
[438]Ex 10, 12.
The prospect of such an arrangement being available proximate to where the plaintiff will want to live and apt to her individual needs and preferences is difficult to predict. The evidence did not proffer an immediately appealing existing option of this kind, and the plaintiff’s desire for independence makes it unlikely to be an alternative favoured by her in the short term. The possibility that the plaintiff might in the future adopt such a shared care/accommodation mode and thus reduce her care costs can be adequately taken into account by a discount for contingencies.
Based on a weekly figure of $5,411.82 and the plaintiff’s current life expectancy on the prospective tables of 39 years (she turns 49 next month), the cost of her future care funded commercially for 39 years (multiplier 910) is $4,924,756.20. After discounting by 12 per cent for contingencies, the amount awarded for future care would be $4,333,785.46.
Case Management
The plaintiff claims for case management costs in accordance with the report of the Lighthouse Group, comprising an initial burst of 80 hours of case management, followed by two hours per month at an hourly rate of $165 by an Occupational Therapist.[439]
[439]Ex 3 tab 9.
The defendant agrees that the plaintiff will require an independent case manager, however the defendant submits that it would be appropriate for such a service to be provided by a registered nurse, as recommended by Ms Murphy.[440] Ms Murphy, an Occupational Therapist, gave evidence that a registered nurse would be a suitable case manager as they would offer a “good multi disciplinary option for managing care.”[441] Ms Murphy considered that after an initial start up burst of 15 hours, two hours of case management per fortnight (one hour a week) was appropriate at an hourly rate of $67.72.
[440]Defendant’s Outline of Submissions [70].
[441]T9-77.
Ms Murphy’s approach involves more hours per year, but a shorter proposed burst of set up work than the Lighthouse Group. The shorter set up period but more regular ongoing hours contemplated by Ms Murphy is apt to the plaintiff’s circumstances, given that communication with her is slow and the management of her circumstances is likely to be difficult to predict with confidence at the outset. I accept a registered nurse would be a suitable case manager.
I would allow a fixed set up cost of (15 x $67.72 =) $1,015.80. In addition, $67.72 per week over 29 years, applying the five per cent tables (multiplier 910), amounts to $61,625.20. The total allowance for case management would therefore be $62,641, discounted by 12 per cent for contingencies to $55,124.08.
Future domestic and home maintenance needs
The plaintiff claims for domestic maintenance as follows: Eight hours per year of spring cleaning at $35 per hour, two hours per month of handyman assistance at $40 per hour, five hours per week of heavy domestic assistance at $35 per hour and two hours per week of lawn mowing and gardening at $40 per hour.[442]
[442]Amended Statement of Claim, Schedule ‘P’.
The defendant submits these are excessive estimates. As the evidence of Ms Murphy indicated, the plaintiff is capable of carrying out some household cleaning tasks herself. Further, it is likely her funded carers will assist with or perform light domestic and maintenance tasks. Realistically, the plaintiff would be unlikely to require added assistance, for heavy domestic and maintenance tasks, for more than an average of two hours per week. I would allow two hours per week at $30 an hour.
This equates to an award at $60 a week over 39 years on the five per cent tables (multiplier 910) of $54,600, then discounted by 12 per cent for contingencies to $48,048.
Future aids and equipment
The plaintiff’s counsel provided as annexure A to his written submissions a comprehensive list of the plaintiff’s future costs of therapeutic aids, appliances and equipment, including replacement costs, giving a total of $59,972.66. The information therein was drawn from the detailed report of Ms Lindy Williams, Occupational Therapist.[443] It was the most comprehensive report before the court on this aspect and is an apparently reasonable forecast of the plaintiff’s needs.
[443]Ex 3 tab 5.
I would, after discounting 12 per cent for contingencies, award $52,775.94.
Future medical expenses
The defendant does not dispute the plaintiff’s claim for the cost of general practitioner reviews every three months, blood tests every three months and twelve psychology treatment sessions in the amount of $10,430.99.
After discounting 12 per cent for contingencies I would award $9,179.27.
Future paramedical expenses
The plaintiff submits that she will require psychological counselling, occupational therapy, podiatry services and Neurolink or alternative therapies, which will amount to $73,927.78 before contingencies.
The defendant contests the inclusion of a component for alternative therapy consultations twice a month due to no evidence being presented as to the therapeutic benefits of such therapies. [444] However Ms Burns and Williams in their joint care and equipment table[445] reasonably explain this component is intended for relief of the plaintiff’s neuropathic pain as an additional form of relief to pharmacological management.
[444]Citing Redden v Forde [1998] ACTSC 42, [38]-[39].
[445]Annexure B to Ex 3 tab 5 p 82.
After discounting 12 per cent for contingencies I would award $65,056.45.
Future pharmaceutical expenses
The plaintiff claims a weekly cost of $4.47 to cover flu and pneumococcal vaccines and wound care products. A weekly cost of $4.47 for 39 years on the five per cent tables (multiplier 910) is $4,067.70. The defendant does not materially dispute this head of damage.
After discounting 12 per cent for contingencies, I would award $3,579.58.
Future accommodation costs
The defendant concedes a cost under this head of $35,436, being the cost of special features and modification to a standard project home to meet the plaintiff’s special needs, as identified in the joint report of construction consultants Gordon Leck & Associates.[446]
[446]Ex 3 tab 12 p 213.
Further to that cost, the plaintiff will have annual recurrent costs, depreciation costs and house maintenance costs[447] which Mr Leck assesses at $210, $288 and $2,784 respectively. That gives a total of $3,282 or $63.12 a week which over 39 years, on the five per cent tables (multiplier 910), equates to $57,439.20, and after discounting 12 per cent for contingencies, to $50,546.50.
[447]These are additional to the costs I contemplated above in respect of domestic and house maintenance needs.
Taken with the cost of special features and modifications, the total award for this head would be $85,982.50.
Additional vehicle costs
The plaintiff pleads a total amount for vehicle expenses of $9,198.84, calculated on the cost difference between a manual and an automatic car and the cost difference of additional insurance for multiple drivers and roadside assistance.
The defendant only concedes the additional insurance cost. It was not shown why an automatic car would be necessary or that the plaintiff would have purchased a car of this type absent her disability. Further, roadside assistance is a cost the plaintiff would have likely incurred in any event.
The additional insurance cost of 96 cents a week for 39 years, applying the five per cent tables (multiplier 910), is $873.60. Discounting 12 per cent for contingencies, I would award $768.77.
Future technology needs
The defendant does not contest the plaintiff’s calculated claim of $188,309.58 for future technology needs. It is reasonable given the nature of the plaintiff’s disability.
Discounting 12 per cent for contingencies, I would award $165,712.43.
Holiday/leisure costs
It is the plaintiff’s submission, founded principally upon Ms Williams’ report,[448] that she would incur additional holiday and leisure costs associated with carer’s airfares to travel with her, carer’s meal allowance and additional hotel room accommodation. Ms Williams proposes annual amounts for those purposes of $1,969.90, $1,400 and $4,200 respectively. That is a total of $7,569.90 or $145.57 a week. That amount for 39 years, applying the five per cent tables (multiplier 910), gives rise to $132,468.70.
[448]Ex 3 tab 5 p 73.
The defendant submits that no award should be made for these costs given that the plaintiff has provided no evidence of a desire to take regular holidays.[449] I readily infer such a desire. Ms Mules aspires to lead her life to the fullest allowed by her disability. She may experience holidays differently than people without disability, but her desire to holiday away from the shackles of her day to day existence is likely to be as forcefully present in her as in an able bodied person, if not more so.
[449]Defendant’s Outline of Submissions [82].
Applying a 12 per cent discount for contingencies, I would award $116,572.46.
Special damages and out of pocket expenses
The plaintiff submits for special damages of $7,497.38 for pharmaceutical, $33,657.43 for travel, $3,016.90 for medical, $3,789.20 paramedical, $38,237.24 for therapeutic aids and $4,620 for expenses; a total amount of $90,818.15.
The defendant does not appear to dispute these components.
I would award $90,818.15.
Interest on special damages and out of pocket expenses
Interest at 1.7 per cent per annum on special damages and out of pocket expenses over 5.52 years would be $8,522.38.
Quantum Summary
General Damages $ 250,000.00
Past economic loss $ 263,471.68
Interest thereon $ 24,724.18
Future economic loss $ 514,175.31
Past gratuitous care and services $ 588,000.00
Interest thereon $ 51,479.40
Future care $ 4,333,785.46
Case management $ 55,124.08
Future domestic and home maintenance needs $ 48,048.00
Future aids and equipment $ 52,775.94
Future medical expenses $ 9,179.27
Future paramedical expenses $ 65,056.45
Future pharmaceutical expenses $ 3,579.58
Future accommodation costs $ 85,982.50
Additional vehicle costs $ 768.77
Future technology needs $ 165,712.43
Holiday/leisure costs $ 116,572.46
Special damages and out of pocket expenses $ 90,818.15
Interest thereon $ 8,522.38
Total $ 6,727,776.04
Had the plaintiff’s claim on liability succeeded, I would have awarded $6,727,776.04.
Orders
My orders are:
(a) Claim dismissed.
(b) I will hear the parties as to costs.
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