Pekkala v Lubke

[1996] QCA 470

IN THE COURT OF APPEAL	[1996] QCA 470
SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1995

Brisbane

Before Macrossan CJ

McPherson JA

Moynihan J

[Pekkala v. Lubke]

BETWEEN:

ERKKI OLAVI PEKKALA

(Plaintiff)

Appellant

AND:

EDWARD ROBERT LUBKE

(First Defendant)

Respondent

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

Judgment delivered 22/11/1996.

Moynihan J in his reasons has referred extensively to the facts and issues and this enables me to curtail to some extent reference to matters that would otherwise be necessary. He has also identified a number of respects in which it should be concluded that the approach adopted by the trial Judge cannot be supported.

The further question which arises is what order this Court should make in the circumstances. This will require looking at some aspects in a little detail.

The appellant presented himself at the respondent's consulting rooms on 21 December 1989 because of symptoms he was then suffering. In fact, he was then undoubtedly suffering from appendicitis as his Honour has specifically found and as later events made plain. By 31 December 1989 when he was admitted to the Princess Alexandra Hospital he had an accumulated mass in the right lower quadrant of his abdomen from which a large quantity of pus had to be drained and treatment was then given to stabilise his condition until an appendectomy could be performed. This occurred on 6 March 1990 and an inflamed perforated appendix and other abnormal signs were found in the course of the operation. Because of the condition of the appellant's appendix and accompanying complications at this time and subsequently, the appellant had to undergo protracted treatment. His claim is essentially that because of the respondent's faulty diagnosis and treatment on 21 December 1989 he suffered damages and loss under a number of heads including pain and suffering, loss of income, and expenditure of various kinds.

The first question is whether the respondent, by his incorrect diagnosis, or lack of it, and the treatment recommended on 21 December, breached the duty of care that he owed as doctor to his patient. The nature of this duty is helpfully summarised in Rogers v. Whitaker (1992) 175 CLR 479. The trial Judge answered this

question adversely to the appellant because in matters of detail he rejected the account given by the appellant on the basis, it is fair to say, of the impression he formed having seen and heard him give evidence, and because of what he considered followed from the respondent's notes of examination and his evidence as to his usual practice followed in consultations. The respondent had virtually no recollection of the actual consultation even assisted by reference to his notes. The appellant was declared by the Judge not to be dishonest in his account, just wrong. The Judge expressed his view that the appellant had "come to believe in the truth of what he swore" in evidence.

The appellant's version was that after a bad night he presented himself at the respondent's rooms on 21 December at about 7.30am telling the respondent that he had vomiting and diarrhoea and a burning pain in his stomach which he demonstrated by holding his hands against that part of his body. The appellant in his evidence showed some disposition to claim that he had indicated the bottom of his stomach or even its right hand side as the location of the pain, but at other times this assertion was less positively made. The appellant said that the respondent did not examine him at all and in particular did not palpate his stomach but gave a prescription of Endone and Maxolon.

The Judge has set out certain findings in respect of the consultation on 21 December. He said if the appellant placed his hands near his abdomen, he did not indicate the seat of his discomfort as being in any particular quadrant. He said that the respondent examined the appellant's stomach by palpation. He said that the appellant did not mention vomiting and diarrhoea. On the other hand, he accepted that the respondent did not check the appellant's temperature or pulse, but he concluded that the respondent told the appellant to come back the next day. The appellant did not return to the medical centre where the respondent practised until 24 December 1989 when he was examined by other medical practitioners. Those other practitioners did not give evidence at the trial.

The bases on which the Judge rejected specific assertions of the appellant appear to be these. The respondent claimed that his practice was to palpate a patient's stomach when there was a complaint of pain in that area, and he believes he would have followed that practice on this occasion because he wrote a note, "abdomen pain - non-specific" which was, he said, an indication that there had been palpation. The only note he wrote is very brief and apart from the reference to the drugs he prescribed, is in these terms, "21/12/89 abdo. pain - nonspecific". The respondent said that "V and D" would have been a simple notation to write, indicating vomiting and diarrhoea, and the fact of "his not having written `V and D' in the notes is a good indication that no such complaints were made". If this seems a less than compelling basis for rejecting specific statements by the appellant about the course the examination took, one further matter can be added. The Judge said he regarded the appellant's account as "implausible" but the only stated objective basis for this was that on one previous occasion the appellant was reported as saying that the examination by the respondent took ten to fifteen minutes.

The respondent suggested that he had concluded on 21 December 1989 that the appellant was suffering gastroenteritis and that is why he prescribed as he did.

The Judge gave these as his reasons why the respondent's action did not involve a breach of his duty to take care. He said that the appellant as a witness "presented as a person with poor communicative skills". In this connection he referred to the appellant's accent, his limited vocalising and "difficulties of relation and recall". The Judge said that at trial the appellant "gave the strong impression from what he said and his demeanour that he never had any idea why the respondent had prescribed Endone and Maxolon". While it has to be said that this impression does not firmly emerge from the record, the Judge went on to say that it "was an important point because it went to whether or not he had really told the respondent on 21 December about his having diarrhoea". He said that the appellant's appendicitis "must have been very difficult accurately to diagnose notwithstanding the fact that his appendicitis was at an advanced stage". This the Judge said was because of his fat stomach and the fact that three other general practitioners apparently failed to detect it in the days between 24 December and 28 December. The reference here was to the other general practitioners by whom the appellant was examined when he returned to the medical centre during that period.

The Judge further said that the appellant's appendix, it could be inferred, was located away from a usual position. This again was because those other general practitioners as well as the respondent, failed to diagnose appendicitis. Those other practitioners were not called as witnesses but the appellant's testimony suggested that they had palpated his stomach. The Judge further referred to a failure by the appellant "to nominate the right lower quadrant as the seat of pain and the failure of the right lower quadrant itself to respond to palpation". Then there was, the Judge said, "the prevailing gastroenteritis in the district which ... can give very severe abdominal pain" and also there was the quantity of antibiotics in the appellant's system from earlier unrelated treatment which "quite possibly" masked his condition. Finally there was his limited capacity to express himself clearly.

Even allowing for any additional advantage that the trial Judge may have had, it has to be said that a perusal of the record gives no indication of an inability on the part of the appellant to make appropriate response to questioning or to make points which the appellant, in his answers, obviously wished to convey. In any case, if on the occasion of the consultation the appellant was being less than clear in describing his condition, that would have increased the obligation on the respondent to proceed with care in eliciting symptoms.

The Judge's reasoning seems to disclose a strong tendency to reject any factual assertion made by the appellant if it might be thought to be opposed to any implications which could be drawn from the respondent's sketchy note or to the reconstructions which the respondent, without actual recollection of the occasion, was disposed to offer.

The Judge's conclusion as to the difficulty in diagnosing the appellant's appendicitis seems to contain a substantial element of working back from the fact that it was not diagnosed on 21 December. A similar observation applies in respect of the Judge's conclusion that the appendix must have been located in an unusual position.

Not too much weight should be attributed to the apparent failure of the other general practitioners to diagnose appendicitis in the following period. They were not called as witnesses and it was not said that they were unavailable. It is possible that they were to an extent misled by the respondent's recorded incorrect diagnosis and there was evidence that the respondent's unwise prescription of Endone, a powerful analgesic, would have tended to mask the signs and symptoms of appendicitis. The specialist evidence called tended to be less critical of them than of the respondent.

The presence of antibiotics in the appellant's system consequent upon the recent prescription of them for a different condition, was something which the respondent should have been careful to allow for in arriving at his diagnosis. While it is possible that the respondent's brief note did not do justice to the extent of his examination on 21 December so far as it conveys any impression, it points to a perfunctory examination rather than one of a different character.

The evidence of the medical experts called at the trial covered a number of matters of relevance although, as was proper, it did not presume to answer the question which the Judge had to deal with, namely whether the failure to make an accurate diagnosis and give appropriate treatment and advice, constituted a breach of the obligation to take reasonable care. This was a factual question for the trial Judge. A statement of factors which can in general make for difficulty in diagnosis as well as of the steps which prudence would call for when a patient presents himself complaining of abdominal pain, were matters that were covered by the medical witnesses but they provided no particular encouragement for a conclusion that in the present case the misdiagnosis and the treatment and prescription given were understandable or non-negligent.

The lack of a persuasive element in the trial Judge's approach and the use he made of seemingly flimsy bases for rejection of the case the appellant was advancing, convey the impression that the Judge did not make proper use of such advantages as were available to him. To the extent that he relied on the respondent's reconstructions, the trial Judge did not enjoy any significant advantage beyond what is available to this Court. The appellant's account of relevant events has not been consistently rejected by the Judge. For example, the proposition that the other general practitioners, in contrast to the respondent, did palpate the appellant's stomach, seems to come wholly from the appellant's evidence. The case is not one which depended exclusively on a large body of conflicting evidence.

There was no great disagreement amongst the medical experts called, and the respondent himself, in the position in which he was placed, was not able to make extensive assertions on the events that had actually occurred. The respondent's credit fell to be considered only in respect of his assertions concerning his usual clinical practice and his estimations of what he would have done in the circumstances that his brief note revealed.

The core question is not simply whether the appellant's account of the course of the examination on 21 December is substantially correct, but whether the respondent's undoubted failure to make a correct diagnosis and associated failure to treat appropriately conformed with the standard to be expected of a reasonably skilled professional. Although the evidence called in the case identified factors which bore upon the degrees of difficulty which may in certain hypothetical situations be involved in diagnosing appendicitis, none of it suggested that in the case of a patient presenting with a number of extreme symptoms associated with an acute attack and with a full opportunity for examination, it should be regarded as conforming with acceptable professional standards that the appellant should have been diagnosed and dealt with as he was. The respondent failed to make a correct initial diagnosis and in a situation where he arrived at no specific diagnosis at all (as his noted reference to non-specific pain indicates) he prescribed a strong narcotic drug which would have the effect of suppressing painful symptoms and he failed to warn the appellant that he might be experiencing appendicitis and should conduct himself in accordance with that possibility. Putting to one side the failure to make a specific diagnosis, the expert evidence provides significant support for the proposition that in the circumstances the respondent should, at least, have been suspicious that the appellant was suffering from appendicitis and that the respondent should not have prescribed Endone. This is not a case where there are particular difficulties in the way of this Court's substituting its own conclusion when it considers that the approach adopted by the Judge below in deciding the central factual question is unacceptable. The proper conclusion is that the trial Judge in this case erred in deciding that the duty of care was not breached and his finding to that effect should be set aside.

On the question of contributory negligence, there is an even less convincing basis for the Judge's conclusion that this was demonstrated "in three clear and distinct ways". First, the Judge referred to the failure to mention the symptoms of vomiting and diarrhoea "if it were the case" that there was such a failure. The Judge, it must be noted, here refrains from finding specifically that there was a failure and there was no persuasive basis in the evidence for such a finding. Second, he referred to the appellant's failure "if it were known to him" to point to his lower right quadrant as the seat of his stomach pain. The Judge here seems to base himself upon an assumption that the appellant's appendix was conventionally located and concludes that no definite indication of the place where the pain was centred may have been given by the appellant. However, his seeming reservation of the point that the seat of the pain may not have been apparent to the appellant, deprives this finding of weight. Finally, the Judge referred to the appellant's failure to return to the medical centre the following day presumably because the Judge accepted the proposition that the respondent would have told him to. However, the appellant, in cross-examination, denied that he had been told to do this and the respondent, without actual recollection, had merely suggested this instruction as one which, based on his usual practice, was or would have been given. From the appellant's point of view, he had been provided with drugs and given to understand they would cure his condition. Even if advice about returning to the medical centre had been given in the form which the respondent (and the Judge) appeared to assume, it is unduly harsh to conclude that the appellant was guilty of contributory negligence in postponing his return until 24 December 1989.

There is no sufficient basis for any finding of contributory negligence.
A final point to be mentioned is the Judge's statement, not further explained,

that even if he found the respondent in breach of his duty of care he "would have been unable to find a causal connection between such breach and the damages about which (the appellant) complained". Notwithstanding this observation, the Judge said, "If I had found for the plaintiff I would have gone on and assessed damages under the heads complained. The sums claimed under those heads were not excessive, they total $36,515.82".

Since further explanation is absent, the precise point the Judge was intending to make at this point in his reasons is not fully apparent. Sympathetically viewed, he seems to be saying that all of the pain and suffering, loss of earnings and other items of economic loss due to the course which the illness took and its associated treatment, should be assessed at $36,515.82 more than would have been a proper assessment under the same headings if there had been no misdiagnosis and prompt treatment. Some reason for assuming that this is what the Judge was, in very abridged fashion, intending to decide, is that no point at all has been taken on this aspect. There is no cross appeal and the outlines of argument and oral argument presented to this Court do not touch the matter of damages. In those circumstances this Court is justified in taking the trial Judge's assessment at face value for the purposes of the appeal.

The order below should be set aside and in lieu thereof judgment entered for the plaintiff against the defendant for $36,515.82 with the costs of the action (including reserved costs, if any) and of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Moynihan J.

[Pekkala v. Lubke]

BETWEEN

ERKKI OLAVI PEKKALA

(Plaintiff) Appellant

AND

EDWARD ROBERT LUBKE

(First Defendant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 22nd day of November 1996

I have read the reasons for judgment prepared by the Chief Justice and by

Moynihan J. They concur in thinking that the judgment given in favour of the defendant

should be set aside. With that conclusion I am, for the reasons they have given, in

agreement. The point of divergence is whether the action should be retried or judgment

should now be given for the plaintiff on appeal.

Upon reflection, I have come to the conclusion that a new trial is not warranted,

and that it is competent and appropriate for this Court to dispose of the matter on

appeal. In Queensland a wide ambit has always been given to the power of this Court

under O.70, r.11(1) “to draw inferences of fact ... and to give any judgment ... which

ought to have been given ... in the first instance”. See Clarke & Fauset v. Brisbane

Municipality [1917] St.R.Qd. 322; Baird v. Magripilis (1925) 37 C.L.R. 321, at 324-

325; Smith v. McKeough [1954] St.R.Qd. 17, at 42; (1953) 89 C.L.R. 520, at 526. In

the case of a jury verdict in favour of the defendant, the power on appeal to enter

judgment for the plaintiff may, as those decisions suggest, be more restricted. This is

not a case of that kind. Once the judgment below is set aside, the only remaining

function on appeal is that of drawing an inference of negligence from primary facts

found or not contradicted or not disputed in the court below. At the trial the defendant

himself was unable to recall anything specific about the events in issue, which took

place late in 1989.

In these circumstances and for the reasons given by the Chief Justice, I agree

with the course he proposes. The judgment below should be set aside, and judgment

should now be given for the plaintiff for $36,515.82 together with the costs of the action

(including reserved costs, if any) and of the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1995

Brisbane

[Pekkala v. Lubke]

BETWEEN:

ERKKI OLAVI PEKKALA

(Plaintiff) Appellant

AND:

EDWARD ROBERT LUBKE

(Defendant)	Respondent
Macrossan C.J. McPherson J.A. Moynihan J.

Judgment delivered 22 November 1996

Separate reasons for judgment of each member of the Court each concurring as to the order made.

ORDER BELOW SET ASIDE, JUDGMENT FOR THE PLAINTIFF AGAINST THE DEFENDANT FOR $36,515.82 AND THE DEFENDANT PAY THE PLAINTIFF'S COSTS OF THE ACTION (INCLUDING ANY RESERVED COSTS) AND OF THE APPEAL TO BE TAXED

CATCHWORDS:	NEGLIGENCE - breach of duty - failure by medical practitioner to diagnose appendicitis - failure to conduct a thorough medical examination - whether defendant's negligence caused plaintiff's damage - whether plaintiff contributorily negligent
Counsel:	Mr I. Callinan Q.C., with him Mr Martin for the appellant Mr R. Peterson for the respondent
Solicitors:	Baker Johnson for the appellant Howard Gill & Brown for the respondent

Hearing Date: 3 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 89 of 1995

Brisbane

Before Macrossan C.J. McPherson J.A. Moynihan J.

[Pekkala v. Lubke]
BETWEEN:

ERKKI OLAVI PEKKALA

(Plaintiff) Appellant

AND:

EDWARD ROBERT LUBKE

(Defendant) Respondent

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 22 November 1996

The plaintiff appeals against the dismissal of his action for damages for professional

negligence. He sued the defendant, a medical practitioner in general practice practicing at the

Eagleby Medical Centre, for erroneously diagnosing him as suffering from gastroenteritis when he

was in fact suffering from appendicitis.

As well as concluding that it had not been established that the defendant was negligent, the

trial judge concluded that in any event, the plaintiff had failed to establish the necessary causal

connection between the defendant's conduct and the damages claimed by the plaintiff. He also

made findings of contributory negligence against the plaintiff. The trial judge assessed at a total of

$36,515.82 the damages "he would have awarded had he found for the plaintiff."

The plaintiff had originally sued the defendant and a number of other doctors practicing at

the Eagleby Medical Centre who had attended to the plaintiff in addition to the defendant but the

action proceeded to trial against the defendant alone. It seems that those who practiced at the

Centre did not do so in partnership but shared facilities, and the medical records of patients treated

at the Centre.

The negligence was particularised in the pleadings at the trial as follows:

(a)         failing to examine the plaintiff at all;

(b)        prescribing Endone and Moxolon in circumstances where it ought

not to have been prescribed;

(c)         failing to diagnose an abscess or appendicitis;

(d)        failing to carry out all the tests and otherwise consider appendicitis

or an abscess in the plaintiff; and

(e)         failing to properly treat and examine the plaintiff.

The outcome of the trial turned on events which occurred about 7.30 a.m. on 21 December

1989. The trial judge concluded, and there was ample evidence to sustain it, that the plaintiff was

then suffering from advanced appendicitis. The plaintiff's case was that he had attended the Eagleby

Medical Centre on that occasion and was seen by the defendant. The plaintiff had been a patient at

the centre since 1987. The last occasion prior to 21 December was 15 December 1989 when he

was prescribed a course of antibiotics for an ailment different from that which took him there on the

21st.

The plaintiff's case at trial was that he complained to the defendant of pain, indicating the

lower right quadrant of the abdomen, of vomiting and of diarrhoea. Notwithstanding these

symptoms having been drawn to the attention to the defendant, the defendant did not examine the

plaintiff but prescribed Endone (a strong pain killer) and Moxolon (apparently to suppress any

vomiting consequent upon the taking of the Endone) and sent the plaintiff away with instructions to

return the next day if the pain continued. The plaintiff did return on a number of occasions but was

seen by other doctors. He did not see the defendant again.

The trial judge rejected the plaintiff's account of the consultation although he concluded that

the plaintiff had come to believe in the truth of it. The trial judge's findings as to the crucial

consultation are as follows:

"The consultation room into which Mr Pekkala was shown contained a table, two chairs, a cupboard and couch. If Mr Pekkala had placed both hands near his abdomen as he claimed, he did not do so in a manner which suggested to Dr Lubke that the sea(e) of his discomforture was to any particular quadrant. He did not isolate the location of his pain for Dr Lubke as he claimed. Dr Lubke had Mr Pekkala lie on the couch and he examined Mr Pekkala's abdomen by palpitation.

Dr Lubke found no particular pain location, certainly not to the right lower quadrant. Mr Pekkala did not mention his having suffered vomiting and diarrhoea. Dr Lubke did not take Mr Pekkala's temperature and pulse or order a blood test. There was a bout of gastroenteritis going about the district at the time and Dr Lubke wrongly diagnosed that as a cause - or the cause of Mr Pekkala's pain and discomforture. At that time Mr Pekkala was very much overweight for his frame. He was in truth

suffering from appendicitis although the appendicle abscess which was later discovered at the Princess Alexandra Hospital was less mature on 21 December 1989. Mr Pekkala still had antibiotics in his system from earlier treatment. Dr Lubke prescribed Endone and Moxolon. He told Mr Pekkala to come back the next day if his condition did not improve by then. Mr Pekkala's condition did not improve but he, Mr Pekkala, did not return to the centre until 24 December 1989 when, as I have noted, he saw the first of three doctors all of whom missed his appendicitis.

I am satisfied on the evidence that the prescription of Endone and Moxolon would be considered by some doctors as excessive, but without more evidence I am not in a position to find that Dr Lubke's prescription of those substances on this occasion is in itself a breach of duty nor is there sufficient evidence before me which would justify a finding that Dr Lubke's act in prescribing Endone and Moxolon contributed to the subsequent failures by other doctors to diagnose appendicitis."

The trial judge accepted, implicitly at least, the defendant's account of the consultation. The

defendant in fact had little independent recollection of it. He had recourse to notes which he made

at the time and gave evidence in terms of his "usual practice." The notes were fairly cryptic "abdo

pain non specific, Endone 10 TTO (i.e. 3 times a day) Moxolon 10" which the defendant said

assisted him to have "a very faint memory" of the consultation. The reference to abdominal pain was

construed by the defendant at the trial as a reference to complaint by the plaintiff of a generalised

pain in the abdomen. The defendant gave evidence that in the circumstances he would have

palpitated to the abdomen - he "always did" when abdominal pain was complained of. As well as it

being his usual practice in such circumstances he was comforted by the reference to abdominal pain

in the notes. The defendant's evidence was that he "would say" that when he palpitated the

abdomen there was no specific area of rigidity or tenderness but profuse soreness over the whole of

the abdomen.

The defendant accepted in cross-examination that in retrospect the appellant probably had

appendicitis at the time of the examination and that palpitation of the abdomen should have picked

up pain in the area of the appendix unless the condition was in its very early stages or the appendix

or the pain was masked in some way. He said that had the plaintiff told him he was suffering

vomiting and diarrhoea he would have recorded to that effect on his clinical notes - as has been said

earlier the defendant in any event diagnosed gastroenteritis.

There was evidence which was not controversial to the effect that Endone is a strong pain
killer and that the defendant's prescription of it indicated that he accepted that the plaintiff was

suffering a degree of pain sufficient to justify its prescription. Similarly there was evidence to the

effect that the plaintiff's condition could have been masked by an antibiotic prescribed on the 15th

and subsequent to the 21st by the drugs (particularly Endone) prescribed by the defendant. The trial

judge said that a finding that the prescription of Endone and Moxolon contributed to subsequent

failures to diagnose appendicitis was not justified. It was accepted by the plaintiff's counsel on

appeal that it was difficult if not impossible to upset that finding.

The plaintiff's condition did not improve. He attended the clinic again on 24, 26, 27 and 28

December. He was seen by practitioners other than the defendant. They failed to diagnose

appendicitis. None of them gave evidence at the trial although it was not suggested there was any

difficulty in their doing so. The circumstances of and considerations bearing on their examinations

were not canvassed in evidence at the trial to any significant extent - there were some fairly cryptic

clinical notes on the plaintiff's medical record. On 31 December 1989 at the Princess Alexandra

Hospital, the plaintiff was diagnosed as suffering from an abscess on his appendix, this was treated

and when it subsided an appendectomy was performed.

At the trial, evidence was given by appropriately qualified medical practitioners on behalf of

both the plaintiff and the defendant. The evidence does not appear to have loomed large, if at all, in

the trial judge's conclusion. Insofar as it was based on acceptance of the plaintiff's account of the

examination rejected by the trial judge, that is explicable. Some aspects of the evidence are not so

simply disposed of. The following matters, among others, emerge from that, and indeed the

defendant's, evidence as essentially uncontroversial:

·	In its early stages, appendicitis may be difficult to diagnose.
·	Abdominal pain has many causes.
·	Appendicitis may give rise to generalised abdominal pain but as the condition develops the
pain becomes localised in the lower right abdominal quadrant where the appendix is
situated.
·	Three of the practitioners who gave evidence were critical of accepting a complaint of generalised abdominal pain, particularly sufficiently strong to found the prescription of
Endone without endeavours beyond palpitation to localise the pain and identify its source.
The other did not controvert this.
The grounds of appeal themselves are not particularly forthcoming but the appeal was

conducted on the following grounds, which emerges from the outline of submissions:

·	The trial judge erred in law and fact in finding that any negligence by the defendant would
not have in any event caused the plaintiff's damage.

·	(i)	the defendant had failed in his duty to elicit a reliable history;
(ii)	a properly conducted abdominal examination would
have revealed to any reasonable medical
practitioner the likelihood of appendicitis;
(iii)	the prescription of Endone was inappropriate but in
any event was indicative of a severity of pain
requiring further investigation

·	The defendant ought to have carried out a rectal examination, taken the plaintiff's pulse and
temperature or ordered a blood count.
Counsel for the plaintiff on appeal accepted the trial judge's "incomparable" advantage in

assessing the plaintiff's credibility; Devrieis v. Australian National Railway Commission (1992-

93) 177 CLR 472 (at 479) because he observed the plaintiff when he was giving evidence. The

appeal therefore falls to be determined on that basis. For reasons adverted to earlier, consideration

of the trial judge's position of advantage does not apply with the same force to the defendant's

evidence. He had scant recollection of the occasion and his evidence of it was redolent of

retrospective reconstruction.

As has been said the trial judge found the plaintiff was suffering from advanced appendicitis

on 21 December 1989. The evidence is all one way that advanced appendicitis would, subject to

qualifications which will emerge, have been manifest by localised pain in the lower right quarter of

the abdomen discernible by palpitation. This conclusion takes its place in the context of the evidence earlier referred to that abdominal pain justifying the prescription of Endone indicated that

additional efforts to locate its source were required in the exercise of ordinary prudence.

The circumstances being those adverted to the defendant's diagnosis of gastroenteritis and

failure to diagnose appendicitis seems to require explanation. From this perspective the critical

portions of the trial judge's reasons are as follows:

"Whether these difficulties (in diagnosis an appendicitis) stemmed from the generate (sic) layer of fat which had undoubtedly surrounded Mr Pekkala's mid-drift, an unusual ability or reluctance to impart information, then locate his appendix, the maturity of the appendicle abscess or the masking effect of the antibiotics in his system were a combination of one or all of those facts, it is impossible to say but it is open to me to find, and I do find that Mr Pekkala's true condition was difficult to diagnose on 21 December 1989.

. . . . .

In my opinion on the 21 December 1989, Mr Pekkala must have been very difficult accurately to diagnose, notwithstanding the fact that his appendicitis was at an advanced stage. Firstly there was his fat stomach which must be taken to be a factor, given the difficulty other general practitioners had on the days following the 21 December"

Secondly, there was, I infer, the location of his appendix, Mr Pekkala sustained so much patient from Dr Lubke and other doctors, all missing his true appendicle condition. That it must have been placed in one or other of the obscure positions mentioned by the specialists in evidence. (This paragraph is as it appears in the published reasons).

Thirdly, there was the failure of Mr Pekkala to nominate the right lower quadrant as the seat of pain and the failure of the right lower quadrant itself to respond to palpation.

Fourthly, there was the prevailing gastroenteritis in the district which I was told can give rise to very severe abdominal pain.

Fifthly, there was the quantity of antibiotics in Mr Pekkala's system from an earlier visit to the centre on the 15 December, which quite possibly masked his condition.

Finally, there is the factor which I have already noted, or Mr Pekkala's limited capacity clearly to express himself.

All these factors combine to lead Dr Lubke to a misdiagnosis. I find further that I am not satisfied that Dr Lubke's failure to take Mr Pekkala's temperature, pulse or order a blood test contributed to a misdiagnosis. I do not believe Dr Lubke's act fell in any way short of the standard which would be reached by the ordinary, reasonable, experienced general medical practitioner exercising ordinary care and skill. Dr Lubke was not in breach of the duty of the care which he owed to Mr Pekkala.

In the context of the respondent's duty there is much that is unsatisfactory about this

passage. The trial judge found that the plaintiff presented at the trial as a person with poor

communication skills, with an accent and limited vocabulary and that he was handicapped by

difficulties of relation and recall. The clinical notes to which the defendant had recourse when he

examined the plaintiff had a prominent notation that the plaintiff was a "poor historian." The

defendant, who it will be recalled had little recollection of the examinations did not recollect that the

plaintiff presented as a poor historian or suggest that his investigation was inhibited on that account.

In any event had the plaintiff presented as a poor historian that would not have lessened the

defendant's obligation to take a proper history and conduct a proper examination. Indeed it would

in all probability have served as an indication of the need to use particular care in extracting a

history.

There is no doubt that the evidence establishes that the diagnosis of appendicitis can be

inhibited, and failure to diagnose it may be explained, by obesity or (in some cases) by the appendix

being in an unusual position in the abdominal cavity. There are, it emerges from the evidence

techniques to deal with such difficulties - hence the reference to a rectal examination in the appeal

outline.

In so far as the plaintiff was apparently obese on 21 December (the trial judge found he

was) the defendant appreciated (as he ought have) the difficulty obesity may present to abdominal

examination and the diagnosis of appendicitis. The evidence does not however indicate that he

considered the plaintiff's obesity a problem or that he adapted his examination to take into account

any difficulties it may have imposed on the process of examination and diagnosis.

There was no direct evidence of the position of the plaintiff's appendix. A conclusion that it

was in an obscure position so as to explain the defendant's failure to detect it by a proper

examination can only arise as an inference drawn from the fact of failure to detect advanced

appendicitis by such an examination carried out on 21 December.

Factors such as any apparent difficulty the plaintiff had in communicating, obesity or the possibility that the plaintiff's appendix might be in an obscure position were surely, to adopt the words of one of the expert practitioners who gave evidence, "factors to consider" in any examination

of the plaintiff on the 21st. Neither the evidence nor the findings satisfactorily shows this was

appropriately done.

Given the state of the evidence, the failure of subsequent examiners to detect appendicitis,

cannot safely found any conclusion to the effect that the position of the plaintiff's appendix (or for

that matter his obesity) precluded a proper examination. No examiner other than the defendant was

called and the evidence of the course of the examinations were scant. Indeed during the course of

the trial, the judge intervened to stop counsel for the defendant cross-examining one of the expert

medical witnesses to demonstrate that it was not unreasonable that subsequent examiners failed to

diagnose appendicitis.

It is true that on 21 December there was "prevailing gastroenteritis in the district" which

could give rise to various severe abdominal pain. That is to be put in the context however, that the

plaintiff was then in fact suffering advanced appendicitis which, absent some explanation, should

have been discernible by proper examination and of the evidence to the effect that steps should have

been taken to localise abdominal pain strong enough to justify the prescription of Endone.

It cannot be gainsaid that antibiotics prescribed prior to 21 December were capable of

inhibiting the diagnosis of the plaintiff's condition but the clinical notes were available to the defendant

and he ought to have been aware that the antibiotics might suppress the infection in the appendicitis

allowing it to "smoulder on" as he put it.

It is convenient to remark at this stage that the nature of the defendant's obligation, as

distinct from the finding that it had not been established he had breached it, was not particularly

controversial on this appeal. The trial judge cited well known passages from Duchess of Argyll v.

Beuselinck 1972 Lloyds Reports 172 and Rodgers v. Whittaker (1992) 175 C.L.R. 479 at 493.

He proceeded on the basis of the defendant being required to exercise the level of skill of an

ordinary general practitioner. It should be noted that the passage in Rodgers emphasises the "single

comprehensive" nature of the duty.

The trial judge's reasons, having addressed the issue of duty in general terms, continue: ". . . When we speak of a risk of injury as being foreseeable we are not making any statement as to the probability or improbability of its occurrence. Save that we are implicitly asserting that the risk is not one which is far-fetched or fanciful.

Although it is true to say that, in many cases, the greater the degree of probability of the occurrence of the risk, the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care one must first ask oneself whether, in December 1989, Dr Lubke as an ordinary competent general medical practitioner, exercising reasonable skill and care as such, would have foreseen that his conduct in the alleged respect involved the risk of injury to the plaintiff.

If ones answer is "Yes" it is then for one to determine what Dr Lubke, as the ordinary competent general medical practitioner, exercising reasonable care and skill in December 1989, would do by way of response to the risk. In answering this question the perception of Dr Lubke's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action. It is only when those matters are balanced out that one can confidently assert what is the standard of response to be ascribed to the ordinary competent general medical practitioner, exercising reasonable skill and care placed in Dr Lubke's position.

A risk of injury which is remote in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful but is real and therefore foreseeable. But the existence of a foreseeable risk of injury does not, in itself, dispose of the question of breach of duty. As I have tried to point out. An which is the second of the conditions of negligence. The magnitude of the risk and the degree of its probability remain to be considered, along with other relevant factors. One should ask one self, was it a foreseeable risk? Then the next step is considering the magnitude of the risk and what steps should or might have been taken.

This leads to the law in the third condition upon which a finding of negligence must be based. Mr Pekkala must prove on the balance of probabilities, not merely that Dr Lubke breached his duty of care, but that he caused the damage which he says he sustained. It is not sufficient that damage was sustained after the breach relied upon. It must be shown that the breach caused, or materially contributed to it. It is not sufficient if Mr Pekkala shows merely that Dr Lubke's acts or omissions might have caused the damage he complains of, in the fact the situation disclosed by this evidence it is obvious that Mr Pekkala has his difficulties in regard to the third condition as well as the second.

If one were to apply the "but for" test when considering this question of causation (as both counsels seem to think I should) then Mr Pekkala's difficulties of proof are manifest. Can it be said that but for the several acts or omissions for which Dr Lubke is responsible, the damage about which Mr Pekkala complains would not have been sustained?"

The passage (reproduced as it appears in the record) is not without difficulty. On 21 December the plaintiff was suffering from advanced appendicitis which, absent some exculpatory explanation, should have been suspected or detected on a proper examination. There was surely no

question that an untreated appendicitis could have an adverse effect on the plaintiff's health and

cause him to suffer damage. The evidence does not suggest that there was anything

disproportionate in the consequences to the plaintiff of the defendant's failure to detect or suspect

appendicitis.

The trial judge distinguished Locher v. Turner & Ors (Demack J. unreported 102/94

Rockhampton judgment 22.12.94 appeal dismissed; CA 14/95 21.4.95). It is no doubt true that in

Locher there were "clear signs" suggesting "comparatively few causes one of which was foreseeable

fatal." That may not have been the case here but does not gainsay that the defendant's "single and

comprehensive duty" covered the taking of a history, examination and diagnosis and that it was

foreseeable that failure to do so involved the risk of injury to the plaintiff in the event of failure to

detect a condition from which the defendant was suffering and which ought to have been detected.

As has already been said, the appeal proceeded on the basis that the trial judge's findings as

to the plaintiff's account of the events of 21 December stands. Put shortly however, the state of the

evidence at the trial was that on 21 December the plaintiff was suffering from advanced appendicitis.

A proper examination ought to have at least indicated the need for further investigation or disclosed

appendicitis. The trial judge exonerated the defendant for his misdiagnosis of gastroenteritis by

finding it was explicable by a combination of factors but as has been demonstrated they do not

satisfactorily do so. It follows that the conclusion that the defendant was not in breach of duty

cannot stand.

The trial judge concluded that even if he found the defendant in breach of the duty of care he

owed to the plaintiff, he would have been "unable to find a causal connection between such breach

and the damages . . " complained of. The reasons for judgment do not satisfactorily justify this

conclusion. It was pleaded that as a consequence of the defendant's negligence and failure to

diagnose the plaintiff's condition, the plaintiff required an emergency operation to remove and drain

an abscess which had developed by the 21st, a subsequent appendectomy and fifteen days in

hospital with a readmission to deal with an infection. It may be accepted that those events occurred.
Nothing emerges to suggest they other than flowed from the defendant's breach.

It was then pleaded that the plaintiff had suffered pain, suffering and loss of amenities and a

permanent scar, and sustained "economic loss and other special damages" particulars of which were

to be supplied at the trial.

The trial judge dealt with the assessment of damages in these terms—

"If I had found for the plaintiff [I] would have gone on, and (assess damages under the heads claimed) of. Sums claimed under those heads are not excessive, they total $36,515.82. As to the heads:

Pain and suffering was	$15,000.00
Interest	1,500.00
Economic Loss	6,132.00
Interest	3,679.20
Griffiths v. Kerkemeyer	8,002.00
Interest	802.00
Special Damages	5,202.60
TOTAL	$36,515.92"

Absent any explanation it seems reasonable to assume that these figures are intended to

reflect the consequences of a failure by the defendant to correctly diagnose appendicitis on 21

December. There was no cross-appeal and the assessment was not in issue in the argument of the

appeal. It therefore may be accepted for the purposes of the appeal.

The trial judge concluded that the defendant was "in breach of the duty of care which he

owed to himself . . in three clear and distinct ways:

1.          Failing, if it were the case, to inform Dr Lubke that he had symptoms of vomiting and diarrhoea.

2.          Failing, if it were known to him, to point to his lower right quadrant as the seat of his stomach pains.

3.          Failing to return to the centre on the following day, not returning until 24 December."

The findings in 1 and 2 are curiously qualified "if it were the case" and "if it were known to him" given

the adverse view the trial judge took of the appellant's evidence. Moreover, the finding must now

be viewed in the context of the view I have taken of the defendant's negligence particularly that his

failure to diagnose or suspect appendicitis on 21 December is not satisfactorily explained away by

the factors relied on by the trial judge. As to the third finding, the appellant had been prescribed drugs which he had been given to understand would deal with his condition. Even if he was advised

to return (he denied it in cross-examination and the defendant's examination bearing on the issue was

not based on recollection but rather suggested that "his usual practice") it is unduly harsh to conclude

that the appellant was guilty of contributory negligence by not seeking medical attention until 24

December 1989. There are moreover no findings as to the relationship between the breaches of the

duty the defendant owed to himself and the subsequent course of events. In the circumstances there

is not a sufficient basis for any finding of contributory negligence.

The order below should be set aside and there should be judgment for the plaintiff against

the defendant for $36,515.82 and the defendant should pay the plaintiff's costs of the action

(including any reserved costs) and of the appeal to be taxed.