Queen Elizabeth Hospital v Curtis - [2008] SASC 344

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
QUEEN ELIZABETH HOSPITAL v CURTIS
[2008] SASC 344
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kourakis)
9 December 2008
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - PARTICULAR CIRCUMSTANCES
PROCEDURE - COSTS - APPEALS AS TO COSTS - WRONG EXERCISE OF DISCRETION
Plaintiff (respondent and cross-appellant) contracted meningitis and consequently suffered unilateral hearing loss – plaintiff commenced proceedings against hospital (defendant, appellant and cross-respondent), alleging that defendant failed to treat plaintiff appropriately on her presentation to hospital, and in doing so, the defendant acted in breach of duty of care owed to plaintiff – plaintiff successful at first instance before District Court judge – District Court Judge held that defendant was negligent in (i) failing to make a timely differential diagnosis of meningitis; and (ii) in delaying plaintiff’s treatment with antibiotics – District Court Judge further held that defendant’s breach of duty of care was a material cause of plaintiff’s hearing loss (causation finding) – plaintiff awarded damages of $222,546.22 and 90% of party/party costs (damages finding) – trial Judge reduced plaintiff’s costs by 10% as plaintiff failed to make a pre-action offer pursuant to Rule 6A.02 of the Supreme Court Rules 1987 (SA) (costs finding) – defendant appealed against causation finding and damages finding – plaintiff cross-appealed on damages finding and costs finding – whether trial Judge erred in making causation finding (appeal) – whether trial Judge erred in assessment of damages: (i) whether assessment of damages for pain and suffering and loss of amenities, and loss of future earning capacity was manifestly excessive (appeal); (ii) whether assessment of damages for loss of future earning capacity was manifestly inadequate (cross-appeal) – whether trial Judge erred in exercising her discretion to reduce plaintiff’s costs, pursuant to Rule 6A.05 (cross-appeal).
Held (dismissing the appeal, and allowing the cross-appeal): Trial Judge’s conclusion that defendant’s breach of duty of care was a material cause of plaintiff’s hearing loss confirmed on the evidence – trial Judge’s assessment of damages for pain and suffering and loss of amenities was reasonable and not manifestly excessive – trial Judge’s assessment of damages for loss of future earning capacity was erroneous (i) trial Judge used incorrect multiplier, and interest rate; (ii) trial Judge did not consider plaintiff’s loss of earning capacity beyond age 65; (iii) trial Judge’s reduction for negative contingencies was excessive (iv) trial Judge failed to award interest in respect of past non-economic loss – Court should reassess damages and interest for loss of future earning capacity – lump sum of $200,000 plus interest of $6,5000 is an appropriate award for loss of future earning capacity – trial Judge’s exercise of her discretion to reduce costs was erroneous – Rule 6A.05 discretion should not be exercised to reduce plaintiff’s costs award – judgment entered for plaintiff in amount of $288,846.65.
District Court Act 1991 (SA) s 39(1), s 43; Supreme Court Act 1935 (SA) s 30C; Supreme Court Civil Rules 1987 (SA) r 6A.02, r 6A.05, r 6A.09; Supreme Court Civil Rules 2006 (SA) 6R 116; Civil Liability Act 1936 (SA) s 55, referred to.
Abalos v Australian Postal Commission (1990) 171 CLR 167; AFA Airconditioning Pty Ltd v Mendrecki and Others; Doan and Another v Mendrecki and Others [2008] SASC 195; Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; Alphacell Ltd v Woodward [1972] AC 824; Baker v Corus (UK) Ltd [2006] UKHL 20; Bauchop v The Commonwealth of Australia (Unreported, Supreme Court of New South Wales, Grove J, 4 July 1997); Bendix Mintex v Barnes (1997) 42 NSWLR 307; Bennett v Minister of Community Welfare (1992) 176 CLR 408; Betts v Whittingslowe (1945) 71 CLR 637; Birkholz v Gilbertson (1985) 38 SASR 121; Bresatz v Przibilla (1962) 108 CLR 541; Browne v Dunn (1893) 6 R 67 (HL); Chappel v Hart (1998) 195 CLR 232; Clark v Chandler (1973) 5 SASR 416; Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382; Curtis v The Queen Elizabeth Hospital (2008) 254 LSJS 1; Duke Group Limited v Pilmer & Ors (1999) 73 SASR 64; Ellis (Executor of Estate of Cotton, deceased) v State of South Australia [2006] WASC 270; EMI (Australia) Ltd v Bes [1970] 2 NSWR 238; Environmental Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Faulkner v Keffalinos (1971) 45 ALJR 80; Fitzgerald v Penn (1954) 91 CLR 268; Fox v Percy (2003) 214 CLR 118; Freidin v St Laurent (2007) 17 VR 439; Grincelis v House (2000) 201 CLR 321; Henville (2001) 206 CLR 459; Hughes v Minister for Health [1999] WASCA 131; Jones v Hyde (1989) 63 ALJR 349; King v Raymoon Ltd [2004] NSWSC 694; March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; Marsh v Ruggiero (1997) 70 SASR 132; McGhee v National Coal Board [1972] 3 All ER 1008; Medlin v State Government Insurance Commission (1995) 182 CLR 1; MPB (SA)Pty Ltd v Gogic (1991) 171 CLR 657; Murray v Dawson (1996) 24 MVR 244; Naxakis v West General Hospital (1999) 197 CLR 269; Parker v Commonwealth (1965) 112 CLR 295; Planet Fisheries v La Rosa (1968) 119 CLR 118; Roads and Traffic Authority v Royal (2008) 245 ALR 653; Seltsam Pty Ltd v McGuiness and Another (2000) 49 NSWLR 262; Stewart v Jacobsen (2000) 209 LSJS 174; Teubner v Humble (1962) 108 CLR 491; Travel Compensation Fund (2005) 224 CLR 627; Van Den Heuvel v Tucker (2003) 85 SASR 512; Wade v Australian Railway Historical Society (South Australian Division) (t/as Steamranger) and others (2000) 77 SASR 221; Warren v Coombes (1979) 142 CLR 531; Wheeler v Page (1982) 31 SASR 1; Wilsher v Essex Area Health Authority [1988] AC 1074, considered.

QUEEN ELIZABETH HOSPITAL v CURTIS
[2008] SASC 344
Full Court Gray, David and Kourakis JJ
GRAY J.
Introduction

This is an appeal and cross-appeal against a judgment given in favour of a plaintiff for damages and interest in the amount of $222,546.65 following a trial before a Judge of the District Court. The primary issue raised on the appeal was whether the plaintiff had established that her injuries were caused by the defendant’s breach of duty of care. The appeal and cross-appeal also raised complaints about damages, interest and costs.
Dayna Lee Curtis, the plaintiff, respondent and cross-appellant contracted meningitis in late December 1999. A medical officer in the employ of the Queen Elizabeth Hospital, the defendant, appellant and cross-respondent, failed to treat Ms Curtis appropriately when she presented at hospital and, in so doing, the Hospital acted in breach of the duty of care owed to Ms Curtis.
As a result of the negligence in the failure to make a timely differential diagnosis of meningitis, the treatment of Ms Curtis with antibiotics was delayed for more than 10 hours, with the consequence, as the trial Judge concluded, that the breach of duty of care was a material cause of permanent damage to Ms Curtis’ hearing.
The trial Judge assessed the plaintiff’s damages including interest at $222,546.65. The Judge then made an order that Ms Curtis recover 90 per cent of her party-party costs to be taxed. The Judge made a reduction in the recovery of costs because Ms Curtis had failed to provide details of her claim prior to the issue of proceedings, in accordance with the rules of court.
The Queen Elizabeth Hospital has appealed complaining about the Judge’s finding with respect to causation. It was the Hospital’s case that Ms Curtis had not proved that the breach of duty of care was a material cause of her hearing loss. The Hospital also complained that even if causation had been made out, the damages should have been reduced because there was a real possibility that Ms Curtis would have suffered hearing loss in any event.
The Queen Elizabeth Hospital contended that the assessment of damages for pain and suffering and loss of amenities, and for loss of earning capacity, were affected by error and were, in any event, manifestly excessive. The Hospital abandoned a complaint that Ms Curtis had failed to mitigate her losses.
Ms Curtis cross-appealed with respect to damages and costs. It was her case on appeal that the trial Judge made a material error when assessing damages for loss of earning capacity and that the effect of the error was to cause the Judge to substantially under-assess that component of her damages. During the course of the appeal, Ms Curtis made a claim that interest had been incorrectly assessed. It was finally complained that the Judge made errors of law and fact in the exercise of her discretion as to costs.
The powers and functions of a Court of Appeal in a case such as the present were addressed by the High Court in Fox v Percy.[1] Following debate between the parties in the present proceedings about the nature of the appellate process, it was agreed that the observations in Fox correctly set out the approach to be followed by this Court. Gleeson CJ, Gummow and Kirby JJ in Fox reviewed the earlier High Court decisions of Warren v Coombes,[2] Jones v Hyde,[3] Abalos v Australian Postal Commission[4] and Devries v Australian National Railways Commission[5] and observed:[6]
[1]    Fox v Percy (2003) 214 CLR 118 at [25]-[28] (footnotes omitted).
[2]    Warren v Coombes (1979) 142 CLR 531.
[3]    Jones v Hyde (1989) 63 ALJR 349.
[4]    Abalos v Australian Postal Commission (1990) 171 CLR 167.
[5]    Devries v Australian National Railways Commission (1993) 177 CLR 472.
[6]    Fox v Percy (2003) 214 CLR 118.
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in ... operation”.
After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act [1970 (NSW)] applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
Liability
Background Facts
Ms Curtis was born on 10 February 1983. On or about 22 December 1999 she commenced suffering symptoms of dizziness, nausea and headache. At this time she was living independently. About a week later at 2.00am on 29 December 1999, Ms Curtis awoke with a very serious headache, nausea and significant dizziness. She contacted her mother who made arrangements for Ms Curtis to be seen by a locum at her general practitioners rooms at 8.00am that day. The locum diagnosed a migraine and treated her with medication. Ms Curtis was advised that if her condition did not improve she should go to the Queen Elizabeth Hospital emergency department.
Ms Curtis returned to her mother’s home where she slept for a period but awoke with no improvement in her condition. It was possible that her condition had worsened. Her mother took her to the emergency department of the Queen Elizabeth Hospital at or about 2.15pm on 29 December 1999. Ms Curtis was diagnosed as suffering from a migraine and treated accordingly and discharged to return to her mother’s home at about 8.00pm.
Following her return to her mother’s home, Ms Curtis slept for a period but on awakening her condition was no better. Her mother took her again to the Queen Elizabeth Hospital and she was examined at or about midnight. At 1.00am on 30 December 1999 a presumptive diagnosis of meningitis was made. Ms Curtis then underwent a CT scan and lumbar puncture. The lumbar puncture occurring at 4.20 am. The lumbar puncture was strongly indicative of meningitis and at this time antibiotics were administered to Ms Curtis in line with the treatment protocol for meningitis. She was admitted as an in-patient and was discharged on 3 January 2000.
While an in-patient, her mother noted that Ms Curtis apparently was unable to hear on her right side and reported this to a nurse. On 31 December 1999 Ms Curtis was seen by an Ear Nose and Throat (ENT) registrar at the Queen Elizabeth Hospital whose notes indicated that an otogenic focus had been ruled out. It does not appear that Ms Curtis’ hearing was tested at this time.
The first record by a medical practitioner of possible hearing loss was made by Ms Curtis’ general practitioner following a consultation on 7 January 2000. On 24 February 2000, Ms Curtis underwent a hearing test. This showed she had a profound hearing loss in the right ear. Ms Curtis was referred to an ENT surgeon who recorded that she had profound unilateral deafness in the right ear which was sensorineural in nature.
Ms Curtis had, sometime before contracting meningitis, sustained a middle ear infection. On 1 November 1999, she consulted her general practitioner who diagnosed otitis media – a middle ear infection. A swab was taken with a follow-up consultation on 9 November 1999. It is unclear which ear was involved. Ms Curtis had no recollection of the consultation. Expert evidence at trial excluded any link between this incident in November and her subsequent deafness.
The Judge made a finding that Ms Curtis did not suffer right earache until after her admission to hospital:
A history of right earache is noted in the clinical records on 31 December 1999 by the ENT registrar. The note is unclear as to when the earache was reported to have commenced. Specifically the note does not indicate that the plaintiff said she had right ear ache before the onset of vomiting and photophobia. The note is equally consistent with the plaintiff’s evidence that she did not experience earache before attending hospital. I also note that earache was not a symptom that the plaintiff complained of on either attendance in the Emergency Department. The ENT Registrar’s note appears to be the first reference to this symptom. Having considered this matter, I find that the plaintiff did not suffer earache until after her admission to hospital.
The ENT examination excluded otogenic meningitis but made no note of hearing loss or examination of hearing. The significance of excluding an otogenic cause for meningitis is not clear on the evidence. It does appear, however, from the reports of Drs Croxson and Tomich that the plaintiff’s otitis media diagnosed in November 1999 could be excluded as a cause of her meningitis and hearing loss.
There was no challenge to this finding on appeal.
Initially there was a dispute as to whether Ms Curtis suffered bacterial or viral meningitis. However, it was agreed during the trial, presumably having regard to the overwhelming evidence, that Ms Curtis had contracted bacterial meningitis. This was significant as the medical evidence established that loss of hearing is the most common disability caused by bacterial meningitis.
Two ear, nose and throat specialists gave expert evidence in Court at the trial – Glen Robert Croxson and John Tomich. They were in agreement that Ms Curtis’ right hearing loss was causally linked to her meningitis.
Dr Croxson, in his report dated 15 March 2004, explained that:
The exact mechanism by which bacterial meningitis causes deafness remains uncertain. However, bacterial meningitis is believed to precipitate sensorineural hearing loss by way of extension of meningeal infection from the subarachnoid space along the eighth nerve, the peri otic duct, and the cochlear aqueduct. Infection initially affects the perilymphatic spaces, and eventually spreads to the endolymphatic spaces.
Direct infection of these spaces leads to labyrinthitis which initially may be transient and partial, but may lead to complete hearing loss, if left untreated.
Dr Tomich was of a similar view and described his examination of the CT scans as disclosing that those scans were:
……entirely consistent with an infective process which has entered the right inner ear including the cochlea with resultant new bone formation…
I would concur with earlier expressed opinions that the likelihood of meningitis being complicated by a hearing loss is greater when appropriate treatment is delayed.
It is relevant to observe that no complaint was made, either at trial or on appeal, about the treatment provided by the locum employed by the general practitioner. There was no suggestion that there had been any failure on the part of the locum to make a differential diagnosis of meningitis, or that the treatment and advice of that practitioner was otherwise than appropriate.
Breach of Duty of Care

At trial the Queen Elizabeth Hospital admitted that, through its medical officer, it had acted in breach of the duty of care owed to Ms Curtis in the making of the late differential diagnosis of meningitis, and the consequent delay in the implementation of an appropriate treatment program. However, there was a dispute about the scope of the breach of duty. The Judge noted:
The breach of standard of care admitted by the defendant falls somewhat short of the position advanced by the plaintiff. The defendant admits that the emergency doctor fell short of the relevant standard of care in discharging the plaintiff without considering a differential diagnosis of meningitis. The defendant does not concede that it was possible to diagnose meningitis at the time of the earlier attendance. It is not clear precisely when the defendant concedes the differential diagnosis should have been considered and when it says steps should have been taken to investigate that condition. The most that can be said is that the defendant concedes this should have occurred at some stage of the first attendance rather than sending the plaintiff home around 8 pm on 29 December 1999.
Three reports from Dr John Raftos, an expert, a specialist in emergency medicine, were tendered in evidence. Dr Raftos has been a fellow of the Australasian College of Emergency Medicine since 1983. His curriculum vitae disclosed his extensive academic and professional appointments and experience, as well as his large number of medical publications. Dr Raftos was not required for cross-examination.
Dr Raftos’ primary report of 24 August 2003 included a careful analysis of the history assumed by Dr Raftos, and an analysis of the relevant Queen Elizabeth Hospital records. The evidence at trial established each of the relevant matters of history assumed by Dr Raftos.
The report of 24 August 2003 contained a detailed discussion about meningitis, in the course of which Dr Raftos observed:
The role of the emergency department in the assessment of patients presenting with headache is to exclude potentially life-threatening and disabling causes. In the case of a patient presenting with headache, this is done by considering the nature of the headache, performing a physical examination, and performing investigations including cerebral CT scan and lumbar puncture and analysis of the cerebrospinal fluid (CSF). Features of headache that indicate the need for urgent investigation with CT scan and lumbar puncture include:
·first or worst headache. The presence of a patient’s first severe headache or their worst ever headache is strongly suggestive of intracranial haemorrhage or meningitis and requires urgent investigation,
·photophobia is suggestive of meningeal irritation by blood or infection and requires urgent investigation,
·neck stiffness is suggestive of meningeal irritation by blood or infection and requires urgent investigation,
·vomiting associated with headache is suggestive of meningeal irritation and increased intracranial pressure and requires urgent investigation,
·neurological disturbance is very suggestive of a sinister cause of headache and requires urgent investigation,
·abnormal blood white cell count in the presence of headache, neck stiffness and photophobia is suggestive of meningeal infection and requires urgent investigation.
Dr Raftos considered that Ms Curtis’ presentation to the Emergency Department on 29 December 1999 was:
… very suggestive of a sinister cause of headache (either an intracranial haemorrhage, a meningeal infection, or a tumour). The only reasonable response to such a presentation is to confirm or exclude potentially life-threatening or disabling causes of headache either by performing blood tests, a cerebral CT scan, and a lumbar puncture with analysis of CSF.
The Judge, having reviewed Dr Raftos’ reports, concluded:
I accept Dr Raftos’ assessment and find that the defendant, by its servant or agent, breached the appropriate standard of care to the plaintiff in failing to consider a differential diagnosis of meningitis at an early stage of her presentation on 29 December 1999.
On appeal there was no challenge to the Judge’s finding of breach of a duty of care. Given this finding, the Judge went on to consider the time at which treatment should have commenced:
Accordingly I find that the plaintiff first attended at the hospital at about 2.15 and should have been commenced on antibiotic treatment between 6.15 and 7.15 pm. This is some 10 - 11 hours prior to the time at which such treatment was actually commenced. This is slightly more conservative than Dr Raftos’ assessment but is not significantly at odds with his views.
Again, there was no challenge to this finding on appeal.
Causation
The Judge, when considering causation, posed the question: “whether the failure to administer antibiotics on the plaintiff’s first attendance at the Emergency Department caused or materially contributed to her hearing loss.” The Judge summarised the evidence, reviewed the legal authorities, and concluded:
In view of the fact that hearing loss is a recognised risk of bacterial meningitis that is thought to occur early in the course of the disease, and further, that delay in antibiotic treatment causes a significant increase in risk of hearing loss I consider that the plaintiff has established that there is a link between the failure to administer antibiotics at the time of the first presentation to The Queen Elizabeth Hospital and her hearing loss.
The defendant has admitted a duty to treat the plaintiff appropriately and promptly for her presenting condition and has admitted a failure to meet the appropriate standard of care. The evidence presented, and the state of scientific knowledge, does not enable me to make a finding as to when the plaintiff’s hearing loss occurred. It is simply not possible to say this on the evidence presented. It is clear, as a matter of common sense, that earlier treatment would have significantly reduced the likelihood of adverse outcomes including hearing loss. The defendant has not shown that the delay had no effect at all on the plaintiff nor that the risk would have eventuated in any event.
Whilst the defendant’s position that the failure to administer treatment at an earlier stage does not establish causation in the absence of evidence concerning the onset of the hearing loss has some appeal, I consider that acceptance of this position would produce an unjust result. The uncontroverted medical evidence was that the state of scientific knowledge does not allow a precise time of onset to be determined. The best that can be said is that hearing loss occurs early in the disease, is progressive and is thought to occur in the first 48 hours following admission to hospital. This is consistent with my finding that the plaintiff did not suffer earache prior to her hospital admission. Whilst the comments of King CJ in Birkholz[7] relate to the failure to take precautions substantially increasing the risk of contracting a disease, I consider that they are equally applicable in these circumstances where failure to administer treatment at an early stage substantially increased the risk of the damage that the plaintiff suffered.
I find that the plaintiff has established causation.
It is this finding of the Judge that is under challenge by the Queen Elizabeth Hospital.
[7] Birkholz v Gilbertson (1985) 38 SASR 121.
Ms Curtis submitted that the uncontested evidence established a direct causal link between the breach of duty of care and damage. The trial Judge did not expressly refer to this evidence. On appeal this was advanced as a primary basis to support a finding that the breach of duty was, at the very least, a material cause of Ms Curtis’ injury. It was then contended that in any event the alternative reasoning of the Judge fully justified the finding of causation.
The Appeal - Liability
The Queen Elizabeth Hospital submitted that the Judge erred in her approach to the question of causation. It was contended that the Judge relied upon the principle that once there was proof that injury occurred within an area of foreseeable risk, causation would be established unless the defendant was able to prove to the contrary. In effect the submission of the Queen Elizabeth Hospital was that the Judge reversed the legal onus of proof. It was further submitted that the observations of Gaudron J in Bennett v Minister of Community Welfare[8] and of McHugh J in Chappel v Hart[9] were minority views and did not accord with the relevant principles enunciated by the majority of the High Court. It was said that the observations of King CJ in Birkholz v Gilbertson[10] were obiter dicta remarks that should not be followed.
[8] Bennett v Minister of Community Welfare (1992) 176 CLR 408.
[9] Chappel v Hart (1998) 195 CLR 232.
[10] Birkholz v Gilbertson (1985) 38 SASR 121.
Ms Curtis submitted that there was no universal rule that dictated the conclusion with respect to a dispute about causation. It was said that one can only sensibly discuss causation once the scope of the relevant duty has been ascertained. Thereafter all the facts have to be considered. All inferences that may be drawn need to be assessed, but ultimately the question whether the breach of duty was a material cause needs to be answered. It was said that there was no satisfactory formula to resolve all cases. The statements of general principle to be found in the authorities needed to be examined in the light of the particular factual setting to understand the limitations. It was the submission of counsel for Ms Curtis that the evidence established a direct causal link between the breach of duty and the hearing loss sustained by Ms Curtis.
Causation - Relevant Legal Principles
Courts have grappled over many decades with the formulation of tests to reach a just and fair solution to the issue of causation. It has been established that the courts are not concerned with scientific causation, or issues of strict logic or philosophy. The courts have emphasised that it is a matter of reaching a just and fair conclusion in the particular circumstances. The courts in common law jurisdictions have sought to express a general or overarching principle that could be applied in all cases. However, those attempts have not yet been successful. A number of tests have been proposed in an effort to arrive at a just solution, having regard to the infinitely variable circumstances that may arise when addressing causation.
In Fitzgerald v Penn,[11] Dixon CJ, Fullagar and Kitto JJ observed that causation “is all ultimately a matter of common sense” and “in truth [causation] is not susceptible of reduction to a satisfactory formula.” Judicial writings in the ensuing years have added little to these observations. There has been a similar experience in other jurisdictions. In Alphacell Ltd v Woodward,[12] Lord Salmon observed that causation is:
... essentially a practical question of fact which can best be answered by ordinary commonsense rather than by abstract metaphysical theory.
[11] Fitzgerald v Penn (1954) 91 CLR 268 at 277-278.
[12] Alphacell Ltd v Woodward [1972] AC 824 at 847.
In March v Stramare (E & MH) Pty Ltd[13] the High Court adopted the commonsense view of causation advanced in Fitzgerald. The Court has subsequently affirmed this approach in Medlin v State Government Insurance Commission,[14] Bennett v Minister of Community Welfare[15] and Chappel v Hart.[16] In Bennett[17] McHugh J summarised the position as follows:
Whether or not a causal connexion exists between a breach of duty and any harm suffered by the person to whom the duty is owed is a question of fact to be decided on the balance of probabilities. The existence of the causal connexion is to be determined in accordance with common sense notions of causation and not in accordance with any philosophical or scientific theory of causation or any modification or adaptation of such a theory for legal purposes.
[13] March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506.
[14] Medlin v State Government Insurance Commission (1995) 182 CLR 1.
[15] Bennett v Minister of Community Welfare (1992) 176 CLR 408.
[16] Chappel v Hart (1998) 195 CLR 232.
[17] Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428 (footnotes omitted).
More recently in Henville v Walker,[18] McHugh J again discussed the common sense approach to causation in the following terms:
[18] Henville v Walker (2001) 206 CLR 459 at [105]-[106] (footnotes omitted).
The corollary of the “common sense” approach to causation, as Mahoney JA pointed out in Barnes, is that it is not reducible to a “test” that can be applied across the spectrum of factual situations that arise from case to case. Nevertheless, the course of judicial reasoning in this area has produced certain principles that assist tribunals of fact in deciding causation issues.
If the defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional.
In Roads and Traffic Authority v Royal,[19] Kirby J, in a comprehensive review of the authorities on causation noted:
First, it is important to recognise that, in the context of the law of negligence, causation is essentially a question of fact. Relevantly, the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience. …
Secondly, the burden of proving causation-in-fact, whether at trial or in a review of factual findings on an appeal by way of rehearing, is on the claimant. The standard of proof that must be met is the balance of probabilities.[20] ...
Thirdly, whilst the “but for” test may be useful in defining the outer limits of liability where causation is contested, it is “not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations”.[21] Where a question is presented in respect of statutory liability, the primary duty of the court is to determine the ambit of that liability by reference to the statutory subject, scope and purpose.[22] However, where, as here, the issue is the ambit of common law liability, it is settled that:[23]
[w]here several factors operate to bring about the injury to a plaintiff, selection of the relevant antecedent (contributing) factor as legally causative requires the making of a value judgment and, often enough, consideration of policy considerations. This is because the determination of a causal question always involves a normative decision.
The reference to policy choices does not imply an open-ended judicial assignment of legal liability according to indeterminate criteria. However, it comprises a recognition of the fact that ultimately, a finding on causation depends not on a philosophical or theoretical criterion but involves a practical decision as to whether the common law will assign the whole, or part, of legal responsibility (usually sounding in an obligation to pay monetary damages) to a particular party.
[Emphasis in original]
[19] Roads and Traffic Authority v Royal (2008) 245 ALR 653 at [81]-[84].
[20] Chappel (1998) 195 CLR 232 at 270-271 [93(4)]; Stapleton, “Lords a’leaping evidentiary gaps”, (2002) 10 Torts Law Journal 276 at 279-280 referring to Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620 per Lord Reid.
[21] Chappel (1998) 195 CLR 232 at 255 [62] per Gummow J. See also March (1991) 171 CLR 506 at 510.
[22] Travel Compensation Fund (2005) 224 CLR 627 at 644 [50] per Gummow and Hayne JJ.
[23] Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568 at 586-587 [55] per McHugh J (footnote omitted); [2005] HCA 26. See also March (1991) 171 CLR 506 at 515 per Mason CJ; Henville (2001) 206 CLR 459 at 491-493 [98]-[103].
It has been suggested that a common sense answer cannot be provided to the question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule.[24] As Gummow J observed in Chappel v Hart:[25]
In Environment Agency v Empress Car Co (Abertillery) Ltd, the leading judgment in the House of Lords was given by Lord Hoffmann. His Lordship stressed that whilst “the notion of causation should not be overcomplicated”, it should not “be oversimplified”. He went on to emphasise that (a) the legal issue is not what caused the result complained of, but did the defendant cause it, and (b) “common sense” answers to questions of causation will differ according to the purpose for which the question is asked and the rule by which responsibility is being attributed. In particular, “one cannot give a common sense answer to a question of causation for the purpose of attributing responsibility under some rule without knowing the purpose and scope of the rule”.
[24] Environmental Agency v Empress Car Co (Abertillery)Ltd [1999] 2 AC 22 at 31. See also Chappel v Hart (1998) 195 CLR 232 at 256.
[25] Chappel v Hart (1999) 195 CLR 232 at [63] (footnotes omitted).
In the present proceeding, it is of assistance to define the purpose and scope of the duty of care. At its most general, the scope of the duty was to meet the standard of care observed by competent medical practitioners in the diagnosis of medical conditions and the implementation of appropriate treatment. More particularly, in the present case the scope of the duty was to meet the standard of care observed by a competent medical practitioner in the area of emergency medicine, to make a differential diagnosis of meningitis, and to provide treatment to avoid or minimise the risk of mortality or permanent disability. In this particular case, it is relevant to have regard to the need for a prompt differential diagnosis because of the grave consequences that can follow soon after the onset of meningitis.
Causation – The Direct Evidence Led at Trial
Before further discussing the relevant legal authorities, it is convenient to outline the expert evidence before the Court that was said by Ms Curtis to prove causation as a matter of fact, on the balance of probabilities. Although the Judge did not expressly refer to this evidence, it was uncontested, and in the submission of counsel for Ms Curtis on appeal, was evidence that overwhelmingly established that Ms Curtis’ loss of hearing was directly caused by the breach of duty of the Queen Elizabeth Hospital.
At trial, this evidence came primarily from Drs Croxson and Raftos. The evidence was placed before the Court through the tender of written expert reports, and was the subject of short oral evidence from Dr Croxson. As earlier observed, the Queen Elizabeth Hospital did not require Dr Raftos for cross-examination. In my view, the evidence of these experts was relevant and probative on the issue of causation.
Dr Croxson provided a report of 15 March 2004 in which he set out, with thoroughness and clarity, the relevant history provided by Ms Curtis, as well as information from the Queen Elizabeth Hospital records. He then addressed the mechanism by which bacterial meningitis causes deafness. In that respect, as earlier observed, he commented:
The exact mechanism by which bacterial meningitis causes deafness remains uncertain. However, bacterial meningitis is believed to precipitate sensorineural hearing loss by way of extension of meningeal infection from the subarachnoid space along the eighth nerve, the peri otic duct, and the cochlear aqueduct. Infection initially affects the perilymphatic spaces, and eventually spreads to the endolymphatic spaces.
Direct infection of these spaces leads to labyrinthitis which initially may be transient and partial, but may lead to complete hearing loss, if left untreated.
He then continued:
Otopathological studies in cases of fatal bacterial meningitis have demonstrated serious cochlear pathology, initially with serofibrinous exudate, infiltration of inflammatory cells, and formation of granulation cells. If the infection is unresolved, varying degrees of damage ranging from alteration in the stereocilia of hair cells to complete loss of the organ of Corti may occur.
Thus cochlear hearing loss from meningitis occurs primarily at the cochlear level with loss of the organ of Corti. It is believed that these pathological events occur early in the course of the illness.
Early intervention is critical in preventing the complications of unresolved labyrinthine destruction.
The exact time of onset of sensorineural hearing loss associated with bacterial meningitis is not known. In-patient testing will reveal that most cases of sensorineural hearing loss occurs within 48 hours of admission to hospital. However, follow up outpatient testing is also important because of the rare possibility of progressive sensorineural hearing loss.

Dr Croxson then expressed his opinion in the following terms:
Dayne Lee Curtis suffered a profound right-sided sensorineural hearing loss as a complication of presumed bacterial meningitis.
The successful prevention of hearing loss in bacterial meningitis depends upon the early identification of the condition, and aggressive appropriate antibacterial treatment.
It therefore follows, that if there was a delay in the diagnosis of meningitis in Dayna Lee Curtis, then this delay was more probable than not responsible for the severity of her right-sided hearing loss. Similarly, it is more probable than not that early [intervention] would have prevented the hearing loss from occurring, or prevented the severity of the deafness.
In evidence in chief, Dr Croxson did not add to his written report on the question of causation. During cross-examination he agreed, with reference to that section of his report that dealt with this discussion, that his specialty did not allow him to offer an opinion as to when the damage to Ms Curtis’ right ear might have commenced. He described that topic as being “somewhat out of my specialty”. However, he was not cross-examined at all about his opinion as to probable cause.
Had the Queen Elizabeth Hospital wished to challenge Dr Croxson’s opinion on causation as set out above, in the circumstances fairness demanded that they do so by putting relevant propositions to him in cross-examination. This did not occur. The cross-examiner suggested that only one discrete aspect was outside his expertise. Counsel then sought to argue that this invalidated his entire opinion. The cross-examination to lay a foundation for this submission did not occur and in fairness should have occurred, but in any event, in my view, the submission was without substance.[26]
[26] Browne v Dunn (1893) 6 R 67 (HL); JD Heydon (ed.), Cross on Evidence, (7^th Edition, 2004) [17435-17460].
On the topic of causation, Dr Raftos expressed the following opinion in his report:
A good outcome in acute bacterial meningitis is dependent on prompt diagnosis allowing prompt treatment with appropriate antibiotics. Delay in diagnosis and treatment increases the likelihood of morbidity. Hearing loss is the most common significant complication of acute bacterial meningitis. Delays of hours in diagnosis and treatment can significantly increase the likelihood of permanent sequelae.
…
Ms Curtis suffered permanent hearing loss because of meningitis in December 1999. Had the meningitis been diagnosed and appropriately treated at the hospital visit on 29 December 1999, as should have been the case, the likelihood that she would have suffered permanent hearing loss because of the meningitis would have been significantly reduced.
On 24 February 2004, Dr Raftos provided a report attaching the abstracts of two papers confirming the relationship between the incidence of hearing loss after bacterial meningitis and the time from development of the illness to diagnosis and treatment. Dr Raftos observed:
These articles support the clinical understanding that the incidence of hearing loss in bacterial meningitis is related to the time between development of the illness and diagnosis and treatment. The longer the delay between development of the illness and diagnosis and treatment, the further the damage to the cochlea progresses and the more likely is permanent hearing loss.
The standard of care in 1999 for the treatment of bacterial meningitis was that prompt diagnosis and treatment with intravenous antibiotics significantly reduced the mortality and morbidity. Delays in diagnosis and treatment significantly increase the likelihood of hearing loss.
Had Ms Curtis’ meningitis been diagnosed on the afternoon of 29 December 1999, as should have been the case, and treated with intravenous antibiotics, the likelihood that she would develop permanent hearing loss would have been substantially reduced.
On 8 December 2005, Dr Raftos provided his third report, following a request that he consider other expert reports. At this time, Dr Raftos confirmed his opinion that early antibiotic treatment was essential for a good outcome in cases of bacterial meningitis.
On the hearing of the appeal, the Queen Elizabeth Hospital submitted that the opinion of Dr Raftos was too general to allow the conclusion that the delay in diagnosis and treatment was a material cause of Ms Curtis’ deafness. It was suggested that Dr Raftos had not specifically or directly addressed the question of causation. However, an examination of the correspondence demonstrates that this submission is factually flawed. Had the Queen Elizabeth Hospital wished to challenge Dr Raftos’ opinions, they could and should have done so directly by requiring his attendance for cross-examination, and putting what they considered to be the relevant propositions to him. Rather, the Hospital adopted the approach of “lying by”, and then complaining that there were ambiguities in his written reports.
Proof of causation is to be assessed in a practicable and robust manner. The inherent difficulty in establishing scientific causation where, for example, the aetiology of a disease is uncertain, does not preclude a court from reaching a decision as to causation on the balance of probabilities. As Herron CJ observed in EMI (Australia) Ltd v Bes:[27]
It seems to me that bears out what I have concluded is the correct principle to apply, namely, that it is not incumbent upon the applicant upon whom the onus rests to produce evidence from medical witnesses which proves to demonstration that the applicant's contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion, the Judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the Judge is not entitled in such a case to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but Courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the Judge himself has to try.
The practical requirements of proof will vary from case to case. In the present proceeding, the question of whether an omission was causative gives rise to hypothetical questions which may be inherently difficult to establish definitively. However, this does not preclude a finding on the balance of probabilities. The task of the Court was to decide whether, on the balance of probabilities, the delay of administering antibiotics was a material cause of Ms Curtis’ condition.
[27] EMI (Australia) Ltd v Bes [1970] 2 NSWR 238 at 242.
The unchallenged evidence from Messrs Croxson and Raftos established that the delay in diagnosis of meningitis and the delay in appropriate treatment was more probably than not responsible for Ms Curtis’ right-side hearing loss. This evidence further established that it was more probable than not that early intervention would have prevented the deafness, or at the very least lessened the severity. As Dr Raftos observed, a good outcome was dependent on a prompt and proper diagnosis, and that early antibiotic treatment was essential to a good outcome.
This body of unchallenged evidence established, on the balance of probabilities, that the right-side of deafness sustained by Ms Curtis was a direct result of the failure to make the relevant diagnosis and to provide the required treatment to Ms Curtis. To put it another way, there was direct, relevant, cogent and probative evidence from well qualified experts that Ms Curtis’ right-sided deafness was materially caused by the breach of duty of care owed by the Queen Elizabeth Hospital.
It is to be observed that the trial Judge did not expressly reason in this way, or identify in her reasons the extract reference to earlier reports of Dr Croxson and Dr Raftos. Counsel for Ms Curtis submitted that in any event the approaches identified by the Judge were appropriate alternatives that adequately established causation in the circumstances of these proceedings.
Causation – the Trial Judge’s Approach
The Judge concluded that on the evidence it was not medically possible to determine at what precise time Ms Curtis commenced to suffer hearing loss or at what time that loss became totally irreversible. However, this did not prevent the Judge from drawing inferences as to whether the breach of duty of the Hospital was a materially contributing cause to Ms Curtis’ hearing loss. The Judge reached her conclusions on causation by reference to three lines of authority. The first was the following observation of McHugh J in Chappel v Hart:[28]
Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a wrongful act or omission only when it increases the risk of injury to another person. If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring.
This observation was referred to with approval by Gaudron J in Naxakis v Western General Hospital:[29]
There is, in my view, a tendency to exaggerate the difficulties associated with proof of causation, even in medical negligence cases. For the purposes of the allocation of legal responsibility, “[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring”[30]. And in that situation, the trier of fact – in this case, a jury – is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct had no effect at all or that the risk would have eventuated and resulted in the damage in question in any event.[31]
Callinan J also cited the above observations of McHugh J with approval in the following terms:[32]
In Chappel v Hart, McHugh J was one of two dissentients in a Court of five members of this Court, but I do not take his Honour’s observations that I am about to quote and adopt as being in any way affected by that dissent …
The Judge, in reaching her conclusions on causation applied this test.
[28] Chappel v Hart (1998) 195 CLR 232 at [27] (footnotes omitted).
[29] Naxakis v Western General Hospital (1999) 197 CLR 269 at [31].
[30] Chappel v Hart (1998) 195 CLR 232 at 244-245, per McHugh J.
[31] See Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421 and the cases there cited. See also Chappel v Hart (1998) 195 CLR 232 at 237-238, per Gaudron J; at 247-248, per McHugh J; at 257-259, per Gummow J; at 272-273 per (Kirby J).
[32] Naxakis v Western General Hospital (1999) 197 CLR 269 at [127] (footnotes omitted).
Freidin v St Laurent,[33] a decision of the Victorian Court of Appeal, is a recent illustration that evidence in a medical negligence case of an act or omission that gives rise to a risk or an increased risk of injury may justify a finding of causation. The Court dismissed an appeal in respect of a direction to a jury,[34] which drew upon the expressions used by McHugh J in Chappel v Hart and Gaudron J in Naxakis. Chernov JA emphasised that neither McHugh J nor Gaudron J indicated that a material increase in the risk of injury necessarily involved a finding of causation, even if the risk has materialised. There might be cases where the increase in risk was so slight that, as a matter of common sense, it could not be said that the wrongdoing was the cause of the injury.[35]
[33] Friedin v St Laurent (2007) 17 VR 439.
[34] The relevant direction was: “If you conclude that the wrongful omission to carry out an episiotomy results in an increased risk of injury to the plaintiff, and that risk eventuates, then you may come to the view that the defendant’s conduct has materially contributed to the injuries that the plaintiff suffers, whether or not other factors also contributed to that injury occurring. If you reach that conclusion, then in that situation as members of the jury, you are entitled to conclude that the omission caused the injury in question, unless the defendant establishes that the failure had no effect at all, or that the risk would have eventuated and resulted in the injury in any event”.
[35] Friedin v St Laurent (2007) 17 VR 439 at [20].
Whether a finding that a breach of duty has caused a material risk, or materially increased a risk, will justify a finding of causation in a given case depends on the circumstances of the case and the other evidence. It is also necessary to consider the materiality of the risk or the increase in risk.
It was negligent for the Queen Elizabeth Hospital not to have diagnosed and commenced treatment on the occasion of Ms Curtis’ first hospital attendance. This breach of duty occurred in circumstances where she had already been experiencing symptoms. The medical evidence established that there was a strong prospect that hearing loss was still a prospective risk at that time and that administering antibiotics was likely to substantially reduce that risk. The medical evidence was that a delay of hours could be significant. In this case the delay was in the order of 10 to 11 hours. One of the major conditions that could result from non-diagnosis or delay in treatment of bacterial meningitis did in fact eventuate.
Experience that antibiotics proved effective in substantially reducing the risk of hearing-loss, or in resulting in a recovery of hearing loss, demonstrated that the administering of antibiotics was seen to be effective in cases where a patient’s condition had already progressed sufficiently for the patient to have presented at hospital.
There was no evidence to suggest that there was any abnormal delay by Ms Curtis between the experiencing of symptoms, their progressive worsening, and her presentation at the hospital on the first occasion. A finding was made that prior to presentation Ms Curtis had not suffered from any earache.
The evidence demonstrated that the onset of the condition that eventually resulted in hearing loss was progressive, and this condition was at the severest at the end of that progression.
It was open to the Judge to conclude, on the balance of probabilities, that the failure to administer antibiotics at the first presentation materially contributed to Ms Curtis suffering from a loss of hearing.
This was an available process of reasoning to allow the conclusion that causation had been established by Ms Curtis. I reject the submission of the Queen Elizabeth Hospital that the observations of McHugh J do not represent a legitimate approach to be taken to the determination of causation in a case such as the present.
The Judge referred to the observations of Gaudron J in Bennett v Minister of Community Welfare, which included reliance on the reasoning of Dixon J in Betts v Whittingslowe.[36] Gaudron J observed:[37]
Leaving aside cases involving some positive act and those in which an omission can be treated as a positive act, a case based on omission or a failure to act will, in certain respects, fall for analysis in a way that differs from that appropriate for a case based on a positive act. Thus, in the case of a positive act, questions of causation are answered by reference to what, in fact, happened. In the case of an omission, they are answered by reference to what would or would not have happened had the act occurred. In that exercise, the larger philosophical questions are brushed aside and the issue is approached on the basis that “when there is a duty to take a precaution against damage occurring to others through the default of third parties or through accident, breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm.”
In practice, it is not always necessary to inquire what would have happened in the circumstances under consideration had a positive duty been performed. Thus, in the case of a statutory duty, a “breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.”
And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.
It is relevant to observe that the present case is one of omission to act. In my view the observations of Gaudron J provide an appropriate alternative approach to the determination of causation in the present case.
[36] Betts v Whittingslowe (1945) 71 CLR 637 at 649.
[37] Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 420-421 (footnotes omitted).
The finding of a duty of care and breach may open the way for, while not requiring, an inference of causation in fact, in the way described by Dixon J in Betts v Whittingslowe:[38]
[B]reach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.
In Betts the facts warranted no other inference inconsistent with liability on the part of the defendant.
[38] Betts v Whittingslowe (1945) 71 CLR 637 at 649.
In Naxakis v West General Hospital,[39] Callinan J adopted a similar approach:
Once the jury took the first step, and concluded that Dr Jensen did not, as he should have, consider aneurysm and the need for an angiogram, it would have been a small step for them to conclude that the failure to consider this alternative diagnosis was a cause of the second haemorrhage suffered by the appellant with its grave results. Where, as here, a plaintiff demonstrates that it was open to a jury to conclude that the respondents were in breach of their duty of care to him and this breach was closely followed by his damage, a prima facie causal link is established. It may be displaced and it may be rejected; but it cannot be ignored in considering a motion for judgment for the defendant for the want of evidence.
In the same way, evidence that a particular act or omission increased the risk of loss being suffered, proof that that loss was suffered may, depending on any other evidence in the case, justify an inference that the act or omission materially caused the loss. Those inferences may be rebutted by other evidence.
[39] Naxakis v West General Hospital (1999) 197 CLR 269 at [76] (footnotes omitted).
The observation of Dixon J in Betts were discussed more recently in Roads and Traffic Authority v Royal,[40] where Gummow, Hayne and Heydon JJ observed:
[40] Roads and Traffic Authority v Royal (2008) 245 ALR 653 at [31] (footnotes omitted).
The defendant (but not the majority of the Court of Appeal) also relied on the following statement by Dixon J in Betts v Whittingslowe:
“[B]reach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty.”
He went on to say that in the case before him “the facts warrant no other inference inconsistent with liability on the part of the defendant”. The defendant submitted that the negligent driving of the defendant or the plaintiff was not a “sufficient reason to the contrary” because negligent driving was foreseeable by the appellant. That does not meet the appellant’s argument. There was ample material in the behaviour of the drivers to create a “sufficient reason to the contrary”, or “warrant [an] inference inconsistent with liability on the part of the” appellant.
Kirby J observed:[41]
Sixthly, the way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts. In Betts v Whittingslowe, Dixon J helpfully explained the way in which a finding of the existence of a duty of care and the breach of that duty may open the way for (whilst not compelling) an inference of causation-in-fact. …
…
Betts concerned a statutory duty, on the part of the employer, to securely fence and safeguard all dangerous parts of machinery. The observations of Dixon J were referrable to the circumstances of that case. The fact that a young worker’s hand came into contact with part of the machinery which needed to be guarded permitted an inference of breach of that duty. Indeed, as his Honour went on to say immediately after the passage relied upon, “the facts warrant no other inference inconsistent with liability on the part of the defendant”. His Honour’s reasons do not suggest any presumption to operate or any alteration to the requirement of proof of causation. They have not been understood to suggest any lessening of it . As Dixon CJ later confirmed in his judgment in Jones v Dunkel, the facts proved must form a reasonable basis for a definite conclusion, affirmatively drawn .
...
It remains a requirement of the law that a plaintiff prove that a defendant’s conduct materially caused the injury. Nothing said in Betts detracts from that requirement, which forms the basis for the restatement of the test of causation in March. The question whether there is no real distinction between breach of duty and causation, and the question whether a failure to take steps which would reduce a risk amounts to a material contribution to the injury, have been discussed elsewhere in connection to a possible shift in the onus of proof. No decision of this Court holds that there is that equivalence or some lessening of the requirement of proof. As the majority in Bennett observed, they are questions which have not been considered by this Court.
The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate . Kitto J in Jones v Dunkel said that one “does not pass from the realm of conjecture into the realm of inference” unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam Pty Ltd v McGuiness, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This enquiry is consistent with the commonsense approach required by March.
[Emphasis in original]
In my view, this alternative process of reasoning allows the conclusion that Ms Curtis had established causation.
[41] Roads and Traffic Authority v Royal (2008) 245 ALR 653 at [88], [139], [143]-[144] (footnotes omitted).

Finally the Judge relied on the following observations of King CJ in Birkholz v Gilbertson:[42]
Even if the evidence does not go so far as to prove that the infection occurred in that way, it is quite clear that the appellant’s contact with the carcasses in the chill room must have constituted a major risk of infection. It is a risk which could have been greatly reduced by the provision of gloves and adequate instructions. I do not think that the appellant’s inability to prove on the balance of probabilities that the infection occurred in that way would be fatal to the success of his case. The respondent was clearly under a duty to take such reasonable precautions as it could and these included reducing the risk by the supply of gloves and the giving of adequate instructions. It then becomes a question of causation. Has the failure to take those precautions been shown to have caused or materially contributed to the contracting of the disease by the appellant? It might be argued as a matter of strict logic, that the fact that given precautions would substantially diminish the risk, does not prove that failure to take those precautions materially contributed to the appellant’s infection unless it can be established how that infection occurred. But the law’s view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved. Where a defendant is under a legal duty to take precautions to protect the plaintiff from the risk of contracting disease, and by omitting those precautions, he substantially increases the risk of the plaintiff contracting that disease, the law treats that increase in risk as a sufficient basis, in the absence of evidence showing how the infection occurred, for an inference that the omission of the precautions materially contributed to the contracting of the disease.
These observations provide relevant guidance to the determination of causation in appropriate cases, and in particular the present case. This was a permissible way for the Judge to reach the conclusion that Ms Curtis had established causation. As King CJ points out, the law is concerned to produce a just result to the parties to the litigation. To adopt the reasoning of King CJ to the present case, it may be observed that the Queen Elizabeth Hospital was under a legal duty to take precautions to protect Ms Curtis from the risks associated with the illness of meningitis, and that by omitting proper treatment, the hospital substantially increased the risk of Ms Curtis’ loss of hearing. In these circumstances, when the loss of hearing has in fact occurred, the law treats that increasing risk as a sufficient basis, in the absence of evidence showing how the meningitis occurred, for an inference that the omissions of proper treatment materially contributed to Ms Curtis’ loss of hearing.
[42] Birkholz v Gilbertson (1985) 38 SASR 121 at 130.
The Queen Elizabeth Hospital submitted that the observations of King CJ were obiter and did not represent the law. I disagree. The law is primarily concerned to produce a just result. It is of note that the observations of King CJ have been cited with approval and have been applied by courts in Australia and within the United Kingdom.[43]
[43] See eg. Ellis (Executor of Estate of Cotton, deceased) v State of South Australia [2006] WASC 270 at [683]; King v Raymoon Ltd [2004] NSWSC 694 at [53]; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 at 64-65; Hughes v Minister for Health [1999] WASCA 131 at [65]; Marsh v Ruggiero (1997) 70 SASR 132 at 142; Bendix Mintex v Barnes (1997) 42 NSWLR 307 at 345; Bauchop v The Commonwealth of Australia (Unreported, Supreme Court of New South Wales, Grove J, 4 July 1997).
Causation - Conclusion
The conclusion that the Queen Elizabeth Hospital’s breach of duty of care was a material cause of Ms Curtis’ hearing loss was open to the Judge at trial. No basis has been shown to disturb that finding. To the contrary, it was the correct finding to be made. It follows that the appeal should be dismissed.
Damages
The Assessment
As earlier observed the judgment was entered for Ms Curtis for $222,546.65. The Judge provided a summary of the components of the award:
General Damages for pain & suffering & loss of amenities               $   80,000.00
Past economic loss  $      500.00
Future economic loss inclusive of superannuation  $ 140,000.00
Voluntary assistance past and future  $     1,000.00
Special Damages past  $      346.65
Future medical treatment  $      500.00
Interest on past losses     $       200.00
Total of award  $ 222,546.65
Background Facts
The Judge was impressed by Ms Curtis and described her as having given evidence in a clear and generally candid manner. She impressed the Judge as a remarkably determined and resourceful young woman who despite the challenges she has faced in her life has managed to obtain considerable achievements. The Judge had one minor reservation concerning Ms Curtis’ evidence and that was an unwillingness at times to answer questions in cross-examination or concede issues that might be positive to the defence case. However, the Judge considered this as minor and concluded “the plaintiff in general gave truthful evidence to the best of her ability”. The Judge also accepted the evidence of Ms Curtis’ mother saying “I was impressed by her evidence, which I accept”.
Professor Newall, an expert audiologist, provided a report describing problems associated with unilateral hearing loss. In that respect he observed:
Hearing is one of the senses that we rely upon for personal safety when in danger and for self-perception in space when vision is deprived. The ability to accurately localize where sounds are coming from allowing quick mental decisions when in danger is rated as one of the most disadvantageous and disabling factors caused by unilateral total hearing losses. Most monaural patients report fear and lack of confidence when crossing the street. Their ability to localize a vehicle that has been heard but not seen is impaired thus rendering their chance to quickly move into safety very difficult or impossible.
…
The loss of hearing in one ear is greatly responsible for difficulties including poor sound localization, poor understanding in the presence of background noise, poor ability to follow a group conversation and inability to identify sounds from the deaf side.
…
The ability to localize sounds is greatly affected in monaural listeners who have only one functioning cochlea (Arjan, 2000). Binaural hearing is primordial for retro-cochlear and cortical analyses that provide acoustical cues for sound detection. Sound localization is an ability primarily established by intensity and time differences of a sound detected on both ears. The integrity of peripheral hearing in both ears is therefore fundamental for binaural analysis that will allow localization of sounds.
…
Monaural listening in noise can become an exhaustive and stressful task that can be facilitated by lip-reading, however in a large group situation, where the conversation moves quickly around several talkers, the ability to read the lips is challenging and does not compensate sufficiently.
The difficulty following conversations in noise is exacerbated by the inability to locate and track the talkers in a group as the conversation jumps quickly from one to another person (Dillon, 2001). In a clinical practice it is common to hear from monaural patients that conversations in group are not possible as they unsuccessfully try to locate who is speaking and follow the conversation as it flows across several people. The sense of frustration, isolation and the embarrassment of “guilt” in asking other repeat themselves usually results in social isolation and withdrawal.
The emotional side-effects generated in more demanding situations may contribute to an increase in levels of anxiety (Dillon, 2001). Individuals with unilateral hearing loss usually develop negative emotions towards social situations where communication has been difficult and tend to avoid them.
…
Speech perception can also be affected by reverberation. The spectral energy of the vowel sounds are prolongated when the environment is reverberant causing a masking effect on the consonant sounds, especially at the end of words. Speech perception decreases as reverberation time increases. The reverberation time refers to the amount of time that a sound, at a specific frequency, takes to decay 60dB after the end of the signal. A quiet and not highly reflective environment, such as a living room, will have a reverberation time average of 0.6 seconds and highly reflective environments, such as churches and assembly halls, will have a reverberation time average of 3 to 4 seconds. In adults with normal binaural hearing speech perception starts to be compromised when reverberation time exceeds 1 second but for individuals with sensorineural hearing loss reverberation is already a source of difficulty at 0.4-0.5 seconds (Crandell and Smalldino 2002).
…
Considering that high frequency speech sounds are more attenuated than low frequency sounds when transposing the head (head shadow effect) and that the noise has a negative impact on high frequency speech sounds, which are essential for speech intelligibility in noise, it is not surprising that speech recognition is considerably affected when a conversation is carried out in a noisy environment and especially when the talker is positioned on the deaf side of the listener.
Certainly, individual ability to manage a unilateral hearing loss varies considerably from person to person. Certain factors as duration of deafness and hearing loss onset may be associated with subjective outcomes. Individuals with congenital unilateral total or profound hearing loss have probably acquired several coping strategies through hearing experiences throughout their life and may be able to manage communication better than someone that has recently lost hearing on one side.
Although Professor Newall’s opinions as to loss of earning capacity were not acted on by the Judge, there was no suggestion that his general observations of the difficulties confronting persons with one-sided deafness were not appropriate observations on which the Court could act.
The Judge described Ms Curtis’ disability as follows:
The plaintiff is a young woman presently aged 25. She is left with a significant and permanent disability in the form of complete deafness in the right ear. Dr Tomich gave evidence that the plaintiff’s binaural hearing impairment is 17%. This reflects normal hearing in the left ear and total hearing impairment in the right. He further gave evidence that there was no prospect of restoring the plaintiff’s hearing according to present medical standards. The only possible treatment was theoretically a cochlear implant of some type. Dr Tomich however did not consider this a realistic possibility. Dr Croxson did not give evidence on this point; however, it appears likely that he would agree with Dr Tomich given his reports refer to the plaintiff suffering a total and permanent senorineural hearing loss in the right ear.
…
Drs Tomich, Croxson and Professor Newall gave very similar evidence concerning the effect of the plaintiff’s hearing loss. In general terms their evidence was that a unilateral profound sensorineural hearing loss causes a decreased ability to understand speech, particularly where there is background noise, and a decreased ability to localise sound. The key difference between these experts related to the effect that this condition might have upon the plaintiff’s ability to work in her chosen career as a primary and middle school teacher.
The Judge then made the following findings:
The plaintiff has a permanent physical disability of right sided deafness. This impacts substantially on her normal social, domestic and employment activities. She is a young woman. Notwithstanding her remarkable approach to her disability and life generally it is clear that the disability has caused her and will continue to cause her difficulty and distress.
Dr Ewer, consultant psychiatrist, noted a history that the plaintiff became anxious, depressed and tearful in March 2000, withdrawing from friends and having difficulty coping. She was reluctant to go out and avoided social contact. By the time Dr Ewer saw her in August 2005 her emotional state had improved considerably but she still felt anxious and depressed, she would become tearful every two to three weeks and often felt frustrated due to her hearing loss. This is consistent with the plaintiff’s evidence and my observations of the plaintiff in giving her evidence. Dr Ewer was of the opinion that the plaintiff suffered an adjustment disorder with depressed and anxious mood in 2000 but that this condition progressively improved. It had almost fully resolved at the time of his assessment in August 2005. He considered she was then experiencing minimal adverse effects due to her psychiatric disorder.
The plaintiff gave evidence that her loss of hearing affects her ability to care for her son. She was concerned that if she slept on the good ear she would not be able to hear her son crying in the night. It caused her considerable anxiety whilst he was a baby. Her hearing loss places some restrictions on her ability to enjoy her relationship with her son in that she is not able to go to certain venues and undertake certain activities with him due to the noise level. She generally avoids places where there is a lot of noise such bars, clubs and movie theatres. She and her mother both described difficulties that she experiences when attending shopping centres. All of these matters caused her some degree of distress and impact upon her enjoyment of life.
Whilst she has coped remarkably well in maintaining employment in circumstances that would seem less than ideal for her condition and in furthering her education I accept her evidence that the additional effort associated with her hearing loss has caused difficulty and tiredness.
The Judge declined to make a finding that Ms Curtis was likely to suffer a degree of hearing loss even if she had received prompt and appropriate treatment. It is convenient to return to this issue later. The Judge then proceeded to her assessment of general damages.
The Appeal – General Damages
The Queen Elizabeth Hospital complained of the award of $80,000 for pain and suffering and loss of amenities. The submission was that it was a manifestly excessive award having regard to Ms Curtis’ disabilities. It was pointed out that the damages were not to include the problems associated with meningitis apart from those attributable to the delay in treatment. It was emphasised that Ms Curtis only suffers from a total loss of hearing equal to a 17 per cent binaural hearing impairment. It was said that Ms Curtis’ evidence was that her deafness was inconvenient, sometimes limiting, was embarrassing but notwithstanding these difficulties she was able to maintain an independent life, worked, raised her son, studied and engaged in recreational activities. It was submitted that an award of $80,000 was out of balance with other awards.
I reject the submission that the effects of Ms Curtis’ deafness can be characterised simply as inconveniences. Ms Curtis is disabled as described by Drs Croxson, Tomich, and Professor Newall and as found by the Judge.
Ms Curtis will suffer the consequences of this injury throughout life. The evidence of Dr Croxson and Professor Newall in particular demonstrate the significant ongoing consequences of her disability. In my view having regard to the fact that the plaintiff will have permanent total loss of hearing in one ear for the balance of her life from the age of 16 called for a substantial award in damages. This was an unusual case in which the plaintiff was significantly affected by hearing loss and in the circumstances the award cannot be said to be manifestly excessive. An attempt at comparison with awards of damages for other disabilities was advanced, but such comparisons are of little assistance.[44] The Judge’s assessment of general damages for pain and suffering and loss of amenities, arising from Ms Curtis’ permanent total right-sided deafness, was a reasonable assessment. It was not manifestly excessive.
[44] Planet Fisheries v La Rosa (1968) 119 CLR 118.
The Appeal and Cross Appeal - Loss of Earning Capacity
There was some dispute between the experts, in particular as to Ms Curtis’ employment prospects in the future. In that respect the Judge indicated her preference for the evidence of Messrs Croxson and Tomich. Professor Newall who was more pessimistic about the plaintiff’s future prospects had not examined the plaintiff. The Judge concluded:
With all due respect to the views of Professor Newall I prefer the evidence of Drs Croxson and Tomich on this point. They have both had the opportunity of reviewing the plaintiff and assessing her character and determination to succeed. They also took into account the plaintiff’s employment history, which indicates successful participation in employment of a customer service nature that Professor Newall also considered beyond the plaintiff.
Dr Croxson, in his report of 27 March 2006, provided an opinion regarding the impact of the profound right-sounded sensorineural hearing loss on Ms Curtis’ vocation:
The general problems associated with unilateral profound sensorineural hearing loss are;
1. a decreased ability to understand speech especially in background noise.
2. decreased ability to localize sound in the environment.
In the classroom situation specifically, the problems of background noise and localization of sound are exacerbated. In particular, background noise is a constant feature of classroom teaching irrespective of classroom control, and the localization of a sound or speech from a particular student is important for effective teaching.
White and Eng [White & Eng Journal of Hearing, Writing and Learning Disabilities Vol 2(3) July-Sept 1986 Pages 231-36] examined the problem of unilateral sensorineural hearing loss in the classroom situation and note that 83% of teachers with unilateral sensorineural hearing loss had difficulty localizing sound and 63% of teachers with unilateral sensorineural hearing loss had difficulty understanding students in background noise.
More literature is available on the [effect] of unilateral sensorineural hearing loss in students in the class room situation, with documented diminished academic performance, diminished attention, diminished communication ability, diminished participation in the class room, and poorer behaviour [Dancer Burl & Walters Narrative Skills of Primary School Children with Unilateral Hearing Impairment American Annals of Disability 1995 July 140 (3 pages, 291-294)].
I think it is reasonable to draw a parallel to an adult’s performance in the class room situation given the significant impact of unilateral hearing loss on a child’s performance.
…
Ms Curtis has a significant disadvantage in her chosen vocation of teaching related to her unilateral sensorineural hearing loss.
Some rehabilitation can be achieved, but the underlying problems with background noise and failure to localize sound are a substantial disadvantage to her.
The Judge reached the following conclusions in respect of the claim for damage for loss of earning capacity:
Assessment of the plaintiff’s future economic loss is difficult given the speculation surrounding her future career as a teacher. The plaintiff has a permanent incapacity which will impact upon her ability to undertake that work. The only position identified by the plaintiff as a potential source of alternative employment was as a School Services Officer.
Professor Newall took, as I have indicated above, the least optimistic view of the plaintiff’s ability to undertake work as a teacher. I prefer the view of Drs Croxson and Tomich. Clearly there is an element of speculation involved in an assessment of the plaintiff’s ability to undertake work as a teacher. She has however managed to work in various customer service roles with success. These are roles, which the medical evidence would suggest to be considerably less than ideal. Nevertheless she has had no difficulty obtaining and maintaining such employment albeit I accept with some problems and perseverance on her part. She has also managed to be a student in a classroom and lecture room environment with considerable success judging by the reports of her performance outlined in the academic records that have been tendered. The plaintiff is clearly a person of great determination and persistence. I find that the plaintiff will exercise what earning capacity she has to the greatest extent possible albeit that she may face difficulties in working as a teacher.
The South Australian Education Staff (Government Pre-schools, Schools and TAFE) Enterprise Agreement 2006 formed exhibit P8 and provides some assistance setting out the roles of both teachers and school services officers within the state school system. I accept the plaintiff’s evidence that she would be able to perform the work of a school services officer, as this does not involve classroom teaching. I do however consider that the plaintiff will try her utmost to work as a teacher given her persistence in pursuing that goal, notwithstanding her disability. I also consider that it is likely she could exercise her capacity in other areas of employment for which she is suited not limited to the role of school services officer. She has shown herself to be adaptable and persistent. Her teaching degree will, I consider, equip her for employment other than as a classroom teacher.
Accordingly I do not consider that a calculation of the difference between the earnings and of a teacher and a school services officer is necessarily a helpful exercise in assessing the plaintiff’s loss of earning capacity. Notwithstanding this however there is limited information upon which to proceed. This is a necessarily rough and ready calculation[45]
A band 1 teacher’s salary for the period commencing 1 October 2007 is $49,605 gross. Utilising the 30% tax rate applicable to this salary yields a net salary of $34,723.50. The starting salary for a school services officer step 1 for the same period is $34,071 gross and $23,849.70 net. This yields a weekly difference of $209 per week. The plaintiff is presently 25 years of age having regard to the tables appearing in Luntz “Assessment of Damages” 4^th ed., this shows that for a discount rate of 5% the multiplier applicable to the plaintiff to age 65 is 906 [46]. Applying the multiplier to a net loss of $209 per week yields a total amount of $189,354. From this must be deducted contingencies both positive and negative. I consider a reasonable deduction for contingencies taking into account all of the circumstances should be 30%, which yields an amount of $132,547.80. This calculation does not reflect a loss of superannuation. Rather than performing a direct arithmetical calculation of this I will round up the calculation to $140,000 to include superannuation.
[45] Murray v Dawson (1996) 24 MVR 244.
[46] Discount rate in accordance with section 55, Civil Liability Act 1936 (as amended).

In Corus, Lord Hoffmann said:
The standard rule is that it is not enough to show that the defendant’s conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant’s conduct did cause the damage in the sense that it would not otherwise have happened.[83]
[83] Baker v Corus (UK) Ltd [2006] UKHL 20 at [1].
Acceptance of the proposition, not disputed by the defendant, that an inference that conduct has caused an injury may be drawn from the fact that such conduct increased the risk that that injury would occur, leaves unanswered the defendant’s contention that the inferences that can be drawn in this case do not support the conclusion that it is more likely than not that the defendant’s delay caused the plaintiff’s hearing loss. It submits that the evidence shows only that the delay may have caused the plaintiff’s loss.
A tribunal of fact will often conclude that a breach of duty caused a particular injury by applying its common sense and experience of the real world to the evidence of the occurrence of the injury and the events that preceded it. In medical negligence cases expert opinion evidence is often received on the issue of causation. That opinion evidence may support or weigh against a conclusion of causation by describing the aetiology of injuries of the kind suffered by the plaintiff. The tribunal of fact can then determine, in the context of the known aetiology, whether the wrongful conduct of the defendant played any part in the causation of the plaintiff’s injury. In some cases the evidence of investigations undertaken by a clinical pathologist may even demonstrate the precise mechanism that caused the particular injury suffered by the plaintiff.
Epidemiological studies might also support an inference of causation. Epidemiological studies can properly be used as circumstantial evidence that may, alone or in combination with other evidence, establish causation in a specific case.[84] However, in the absence of scientific evidence establishing the pathological mechanism through which the conduct statistically implicated as a causative agent operates, epidemiological evidence may be incapable of showing more than the bare possibility that the wrongful conduct caused the injury. This is because a mere statistical correlation between an act or omission and an injury may not be sufficient to establish that the act or omission has the capacity to cause that injury. The point can be simply illustrated. Cause A may always result in symptom X that can be, and is often, successfully treated. In many cases, but at a later time, cause A may also result in symptom Y. In those cases where symptom X has been treated and symptom Y later eventuates there will necessarily be a strong statistical correlation between the treatment of symptom X and the subsequent development of symptom Y, when compared to the population at large, even though the treatment has no physiological capacity to cause symptom Y. For that reason, unless the epidemiological studies are combined with evidence that identifies a possible pathological mechanism, the statistical correlation alone may not be sufficient to satisfy the tribunal of fact that the wrongful conduct caused the injury. Indeed, the statistical correlation may not even show that the conduct increased the risk of injury.[85] In my respectful opinion that may be what Spigelman CJ had in mind in Seltsam Pty Ltd v McGuiness and Another[86] when he said:
There is a tension between the suggestion that any increased risk is sufficient to constitute a "material contribution", and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well-established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The "possibility" or "risk" that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X.[87]
[84] Seltsam Pty Ltd v McGuiness and Another (2000) 49 NSWLR 262 at 276, [89], 278, [98] per Spigelman CJ.
[85] It may be otherwise if the study showed a stronger statistical correlation between sufferers of symptom X who were treated and subsequently suffered symptom Y than with those who were untreated.
[86] (2000) 49 NSWLR 262.
[87] Seltsam Pty Ltd v McGuiness and Another (2000) 49 NSWLR 262 at 280, [119] per Spigelman CJ; see also Freidin v St Laurent (2007) 17 VR 439.
If in that passage Spigelman CJ meant X to refer to the wrongful conduct proved in a particular case, and Y to the injury sustained by the plaintiff in that case, and it was undisputed in that same case that Y had happened because of X, it is difficult to understand why there would be any issue as to causation at all. To say “Y happened because of X” is to say that “X caused Y”.
The reasoning approved in the authorities referred to above is inductive in nature. It can be reduced to the following propositions:
·The plaintiff was exposed by the wrongful conduct to an increased risk of injury A.
·The plaintiff suffered injury A for the first time after the wrongful conduct.
·The wrongful conduct caused injury A.
It is immediately apparent that the inductive force of that reasoning will depend on the particular facts and circumstances of the conduct and the injury. For example, as a matter of common sense and experience the temporal proximity between the conduct and injury may greatly affect the inductive force of the reasoning. In some circumstances, for example where it is proved that the plaintiff was exposed to other possibly causative conduct at about the same time, there may be no force in the reasoning at all.
The way in which I expressed the permissible reasoning process shows that the plaintiff must exclude the possibility that the injury pre-existed the wrongful conduct if he or she wishes to prove a causal connection between that conduct and the injury. If the plaintiff does not exclude that possibility he or she will be left with an argument that has no inductive force at all and which can be expressed as follows:
·The plaintiff suffered injury A.[88]
·The plaintiff was subsequently exposed to an increased risk of injury by the wrongful conduct.
·The wrongful conduct caused injury A.
[88] The positive way in which this premise is expressed reflects the onus of proof carried by the plaintiff.
It is not sufficient that a plaintiff prove that the injury was first discovered after the wrongful conduct. If it is not shown that the injury occurred after the relevant breach of duty the inductive force of the reasoning to which I have referred vanishes. At least in the world as we know it, conduct cannot be the cause of an injury that precedes it. A plaintiff cannot prove that a breach of duty has caused the injury for which damages are sought without proving that he or she did not suffer that injury before the occurrence of the acts or omissions by which the duty was breached. I accept that a plaintiff may prove his or her previous good health in a number of ways. The absence of symptoms, the opinion of a medical practitioner who has conducted a medical examination prior to the conduct, or the temporal features of the aetiology of the disease are the most obvious examples. Less obviously, the previous good health of the plaintiff might also be established by evidence that the plaintiff was not previously exposed to any conditions that could have caused the injury. However, in this case the evidence showed the very opposite. It showed that the plaintiff had been suffering the acute symptoms of meningitis for many hours before she presented at the defendant’s hospital.
The prior medical condition of the plaintiff is often an issue in claims arising out of industrial or motor vehicle accidents that result in personal injury. Where the duty is breached by an omission to take action to prevent injury arising from another source it is just as necessary to prove that the injury did not precede the wrongful conduct. For example, if an ambulance is negligently delayed and for that reason arrives after the time at which it reasonably ought to have arrived, the ambulance service will not be liable for an injury which had already occurred well before the standard response time had elapsed.
I am not prepared to accept, on the present state of the authorities, that for reasons of policy, a plaintiff should be excused from establishing that the injury did not pre-exist the defendant’s negligence where it is difficult to do so because of the poor state of scientific knowledge. To do so would impose an onus to disprove causation on the defendant. Let it be assumed that the evidence showed that hearing tests had been performed before the time at which antibiotic treatment should have started. It could hardly be doubted that the plaintiff would be expected to lead that evidence and that her claim would be dismissed if she failed to adduce evidence that the tests showed that she had not lost her hearing at that time. It follows that it would reverse the onus of proof to find for the plaintiff, unless the defendant adduced evidence that the hearing test revealed that the plaintiff had already lost her hearing. The asbestos exposure cases where the plaintiff’s injury is shown to have been caused by the wrongful conduct of one defendant or the other, and where contribution may be ordered between defendants, are in a special category.[89] The different and more difficult policy questions that arise where the competing possibilities are between a wrongful cause and an innocent cause or causes do not allow the application to this case of the policy solution developed in those cases.
[89] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.
The effect of the medical evidence in this case was that hearing loss could occur within hours of the onset of acute symptoms. In fact, it is precisely because hearing loss might be suffered very quickly after the onset of acute symptoms that early treatment by antibiotics is considered to be imperative in cases of meningitis. The plaintiff had suffered acute symptoms from shortly after midnight on 29 December 1999. Her symptoms included nausea, vomiting, severe headache and photophobia. Given the subsequent diagnosis, which was accepted at trial, of bacterial meningitis, it is possible that the plaintiff had contracted meningitis well before 6:15 pm to 7:15 pm that evening, which is the time by which the trial Judge found that the defendant should have commenced antibiotic treatment. I will refer to that time as the relevant time. It is not surprising therefore that the time at which the plaintiff sustained her hearing loss was a major issue at trial. In particular, the defendant contended that the plaintiff had not excluded the possibility that she had suffered her hearing loss shortly after the onset of her symptoms and therefore up to 18 hours before the relevant time.
For the reasons I have explained, the trial Judge could not find that the defendant’s conduct had caused the plaintiff’s hearing loss without finding that the plaintiff had not suffered that loss before the relevant time. However, the trial Judge made no such finding. On the contrary, the trial Judge expressly found that she could not determine when the plaintiff suffered her hearing loss:
The evidence presented, and the state of scientific knowledge, does not enable me to make a finding as to when the plaintiff’s hearing loss occurred. It is simply not possible to say this on the evidence presented. It is clear, as a matter of common sense, that earlier treatment would have significantly reduced the likelihood of adverse outcomes including hearing loss. The defendant has not shown that the delay had no effect at all on the plaintiff nor that the risk would have eventuated in any event.[90]
[90] Curtis v Queen Elizabeth Hospital (2008) 254 LSJS 1 at [63].
The most obvious meaning of the phrase “the defendant has not shown” is that the defendant has failed to satisfy an onus it carried. The plaintiff’s counsel submitted that the sentence should be read as if the trial Judge was saying that there was insufficient evidence contradicting the inference of causation that could be drawn to prevent her concluding that the defendant’s negligence caused the plaintiff’s hearing loss. Even if that sentence stood alone it would be difficult to read it in that way. If the trial Judge meant to describe the process of reasoning suggested by the plaintiff’s counsel there would be no occasion for any reference the defendant failing to show anything. The only question would be whether on all of the evidence the plaintiff had shown that her hearing loss was caused by the defendant’s negligence. Nor can the sentence be read as a reference to an evidentiary onus. If there is an evidentiary onus on a defendant in circumstances such as these, it had certainly been discharged. The evidence plainly raised a real issue as to causation. It follows that if the trial Judge was suggesting by the phrase “the defendant has not shown” that the defendant had not even discharged an evidentiary onus, she was plainly wrong. In any event, I doubt that it is strictly right to place an evidentiary onus on a defendant in personal injury cases where causation is put in issue. For the reasons given earlier, even though an inference of causation may be drawn from a breach of a duty to prevent the injury suffered, or from conduct that increases the risk of that injury, the evidence may still fail to satisfy the tribunal of fact on the balance of probability, that the wrongful conduct caused the injury. It is not the case that the inference must be acted on unless the defendant adduces or points to evidence that supports an inference to the contrary.[91]
[91] Cf McHugh J in Chappel v Hart (1998) 195 CLR 232.
Whatever view might be taken of the impugned sentence in isolation, it does not stand alone. The trial Judge expressly acknowledged in the same passage that she was not able, on the evidence, “to make a finding as to when the plaintiff’s hearing loss occurred”. If no finding could be made then, in my view, the plaintiff has necessarily failed to discharge the persuasive onus she carried. I cannot read that sentence as a reference to uncertainty about the precise time after the negligent conduct that the plaintiff lost her hearing. If the plaintiff had suffered her hearing loss at any time after the relevant time, the plaintiff could rely on the inference to which I have earlier referred to prove causation, and the precise time of that loss would be of no relevance at all. On my reading of that passage, the trial Judge was referring to the difficulty, which the defendant had pressed at trial, of determining whether the injury was sustained before the relevant time, given the state of the medical evidence and the fact that the plaintiff’s hearing was not tested during that day.
Moreover, the trial Judge repeated the same view in the very next paragraph of her reasons:
The uncontroverted medical evidence was that the state of scientific knowledge does not allow a precise time of onset to be determined. The best that can be said is that hearing loss occurs early in the disease, is progressive and is thought to occur in the first 48 hours following admission to hospital. This is consistent with my finding that the plaintiff did not suffer earache prior to her hospital admission. While the comments of King CJ in Birkholz relate to the failure to take precautions substantially increasing the risk of contracting a disease, I consider that they are equally applicable in these circumstances where failure to administer treatment at an early stage substantially increased the risk of the damage that the plaintiff suffered.[92]
[92] Curtis v Queen Elizabeth Hospital (2008) 254 LSJS 1 at [64].
It is convenient to observe at this point that, although the defendant had unsuccessfully attempted at trial to rely on a medical note that suggested that the defendant had complained of earache well before the relevant time, there was no medical evidence that hearing loss, secondary to meningitis, is always or even sometimes accompanied by earache.
It is plain from the above passages that the trial Judge must have proceeded on the basis that the plaintiff did not carry the onus of establishing that she had lost her hearing before the relevant time. The trial Judge appears to have thought that the reasoning applied in Birkholz did not require proof by the plaintiff that the negligence preceded the injury. However, in Birkholz it was accepted that Mr Birkholz had contracted brucellosis in the course of, and not before, the very employment during which there was a negligent failure to provide him with gloves. The same was the case with the plaintiff’s employment in McGhee. Those cases are not authority against the proposition that an inference that negligent conduct, which increases the risk of injury, caused that injury can only be drawn if the injury occurs after the breach of duty.
If the trial Judge’s view that the evidence does not allow a finding to be made that the plaintiff’s hearing loss was not suffered before the relevant time is correct, then for the reasons I have given, this court would be bound to allow the appeal and dismiss the plaintiff’s claim. However, I do not accept that the evidence is as uncertain as the trial Judge thought.
In his report dated 24 August 2003 Dr Raftos concluded:
The failure the perform blood tests, CT scan and lumbar puncture at the visit on 29 December 1999 effectively delayed treatment with appropriate antibiotics by 10 – 12 hours. Such a delay significantly increases the likelihood of mortality and disability caused by meningitis. The delay of 10 – 12 hours in diagnosing and treating Ms Curtis’ meningitis significantly increased the likelihood that she would suffer disability because of the meningitis. Hearing loss is the most common disability caused by meningitis.
Opinion
Ms Curtis suffered permanent hearing loss because of meningitis in December 1999. Had the meningitis been diagnosed and appropriately treated at the hospital visit on 29 December 1999, as should have been the case, the likelihood that she would suffer permanent hearing loss because of the meningitis would have been significantly reduced.
Dr Raftos in that passage expressly concludes that it was the delay at the Queen Elizabeth Hospital on the afternoon of 29 December 1999 that caused Ms Curtis’ injury. Dr Raftos repeated that opinion in his report of 24 February 2004 where he concluded that if Ms Curtis had been treated with antibiotics on the afternoon of 29 December 1999 the likelihood that she would have suffered permanent hearing loss would have been substantially reduced. Logically Dr Raftos could not hold that opinion unless he held the opinion that Ms Curtis had not suffered total hearing loss before the relevant time.
Dr Raftos was not called. Both parties were content for his reports to be received into evidence. It is a troubling feature of this case that Dr Raftos did not expressly state in his report that Ms Curtis had not suffered hearing loss before presenting at the Queen Elizabeth Hospital. Moreover, it is difficult to see from the other evidence in the case how Dr Raftos could have come to that conclusion. Nonetheless, that is the inescapable implication of the opinion that he expressed in his reports. His reports were not contradicted by any other expert evidence adduced at trial. In those circumstances his reports cannot fairly be read in any other way. If the defendant wished to take issue with the premise, inherent in Dr Raftos’ report, that the plaintiff had not yet lost her hearing at the relevant time, it was bound to insist that Dr Raftos give evidence so that he could be asked to justify that opinion. It cannot now be assumed that he would have departed from or modified his report by accepting that he could not say when the hearing loss was suffered. It is equally, if not more, likely that if challenged he would have proffered an explanation that is not immediately apparent from the other evidence. Ultimately it is just not permissible to speculate about what he might have said if he had been challenged.

In those circumstances I would find on all of the evidence, but in particular the passages in the reports of Dr Raftos to which I have referred, that the plaintiff has established that she had not suffered her hearing loss before the relevant time.
On the basis of that finding, the question remains as to whether, even if the plaintiff had been treated at the relevant time, she would nonetheless have suffered total unilateral hearing loss. I observe on this issue that the evidence that the failure to treat promptly “significantly” increased the risk of hearing loss is quite vague. It is difficult to give any meaningful content to the word “significantly” without knowing much more about the aetiology of the condition, and the epidemiological studies, than can be gleaned from the brief references in the evidence. However, not without some hesitation, I agree with the conclusion of Gray J that the evidence supports a finding that the defendant’s delay caused the plaintiff’s injury. I am particularly persuaded by this passage in the report of Dr Raftos:
The second paper (Kesser BV. Time course of hearing loss in an animal model of pneumococcal meningitis. Otolaryngology – Head & Neck Surgery. 1999) describes the development of a time course of hearing loss in meningitis. The authors note that:
‘These experiments … support the hypothesis that this hearing loss is progressive rather than abrupt in origin and is related to the duration of the untreated infection.’
These articles support the clinical understanding that the incidence of hearing loss in bacterial meningitis is related to the time between development of the illness and diagnosis and treatment. The longer the delay between development of the illness and diagnosis and treatment, the further the damage to the cochlea progresses and the more likely is permanent hearing loss.
The progressive nature of the disease and the correlation between its duration and hearing loss is important. If Ms Curtis had not yet suffered total unilateral hearing loss before the relevant time, then it is very likely that the administration of antibiotics would have reduced the infection before it progressed to the stage where it would cause hearing loss.
Damages
I agree with the conclusion and reasons given by Gray J on the issue of the quantum of the plaintiff’s damages.
Rule 6A 1987 Rules
At the time that the plaintiff commenced her action Rule 6A of the Supreme Court Civil Rules 1987 relevantly provided:
6A.02
(1)At least 90 days before commencing an action the plaintiff is to post or send to the defendants at their last known address a notice of the proposed claim with sufficient detail so that the defendants have a reasonable opportunity to make an offer to settle the claim before it is commenced.
(2)Where the claim is for any unliquidated amount the notice is to state the sum which the plaintiff will accept in satisfaction of such unliquidated claim or why, with brief reasons, such sum cannot be stated.
6A.04 Where the claim is supported by expert evidence the plaintiff is also to send to the defendants and the insurers copies of any relevant reports from any expert which are relied upon with the notice under Rule 6A.02 unless such reports have already been supplied.
6A.05 The Court may deprive a plaintiff who does not comply with Rule 6A of the whole or part of the costs of the action.
The trial Judge reduced the plaintiff’s costs by ten per cent because she had failed to comply with Rule 6A.
The plaintiff contends that there should not have been any reduction because if she had not issued the proceedings when she did, her action would have become statute barred. The plaintiff submits that it was not realistically possible to formulate a claim at that time because on the medical reports then available there were many doubts as to whether she had suffered bacterial or viral meningitis. However, that excuse for non compliance merely raises the anterior question, which is why the plaintiff had not investigated the claim earlier so that she could comply with Rule 6A before the limitation period expired. It is a necessary implication of Rule 6A that a plaintiff must do what is reasonably necessary so that he or she can formulate a claim before action. If the court were to exercise its discretion not to reduce a plaintiff’s costs on the ground that the plaintiff had not yet obtained the information that he or she needed to formulate a claim before the limitation period expired, the purpose of the rule would be largely frustrated. In Stewart v Jacobsen[93] this court confirmed the decision of a trial Judge to reduce a plaintiff’s costs by ten per cent where the proceedings were issued just days before the expiry of the applicable limitation period.
[93] (2000) 209 LSJS 174.
Nor can any assumptions be made about the reason for a plaintiff’s failure to investigate the claim in a timely manner. In some cases the reason might lie in the plaintiff’s impecuniosity. If that is the case, then the plaintiff must establish that it is so by evidence. The wide availability of legal assistance, litigation funding and contingency fee arrangements do not allow any assumption to be made about the incapacity of the plaintiff to instruct a legal practitioner in the absence of evidence to that effect.
Rule 6A is an important procedural mechanism calculated to optimise the use of the limited resources that a court has available to it. Its purpose is discussed in Stewart. The rule is calculated to encourage the resolution of disputes before proceedings are issued, and in so doing both benefit the prospective litigants and save the resources of the court. The purpose of the cost penalty that may be exercised in the court’s discretion extends beyond the interests of the particular litigants before the court. It is well accepted that a court may properly have regard to the interests of litigants other than the parties in the matter before it when making procedural orders.[94]
[94] Supreme Court Civil Rules 2006 6R 116; Pezzano v Perre (1980) 32 SASR 336 at 341.
In Stewart,[95] Nyland J explained that the prospect that the discretion may be exercised adversely for no other reason than that the rule has been breached is likely to achieve greater compliance with the rule and thereby achieve its manifest purpose. It follows, in my view, that the failure to formulate a claim before the institution of proceedings is both the circumstance that enlivens the exercise of the discretion and is in itself a material consideration.
[95] Stewart v Jacobsen (2000) 209 LSJS 174, [78].
However, the bare failure to comply with the rule is but one of the material considerations that are suggested by its text and purpose. Given that the primary purpose of the rule is to encourage the settlement of disputes before action, the likelihood that the parties would have settled the claim if the notice had been given is a relevant, but not decisive, consideration. On one hand, where it appears that the claim would almost certainly have settled before action, there will be a strong case for denying a plaintiff all of the costs he or she incurs by instituting an action. On the other hand, the rule should not be applied in a way that compels the prospective parties to an action to incur the cost of engaging in obviously futile attempts to settle disputes, for example, where the plaintiff’s injury and its consequences are far from settled.
The trial Judge explained her reasons for reducing the plaintiff’s costs by ten per cent in this way:
In my opinion there are no grounds upon which to relieve the plaintiff from the consequences of her failure to comply with Rule 6A.02. There will be an order that pursuant to Rule 6A.05 the costs of the action of the plaintiff be reduced by 10%.[96]
[96] Curtis v Queen Elizabeth Hospital (2000) 254 LSJS 1at [22].
In my view that passage demonstrates that the trial Judge has read into Rule 6A a presumption that the discretion will be exercised, at least to some extent, adversely to a plaintiff who fails to comply with the rule unless there is sufficient reason to rebut that presumption. In so doing, the trial Judge erred. The text and purpose of Rule 6A makes it clear that the failure to comply with the rule is in itself a material consideration. However, the rule carries with it no bias. There is no presumption governing the way in which the discretion is to be exercised. The exercise of the discretion is dictated by the interests of justice in the particular case.
The exercise of the discretion by the trial Judge is therefore affected by an error of law and it is necessary to exercise the discretion afresh. I acknowledge, as Nyland J explained in Stewart, that the fact that the proceedings did not settle after the institution of proceedings is not enough in itself to excuse entirely a failure to comply with the rule. The very fact of the institution of proceedings may in some cases engender attitudes which militate against compromise. However, in my view the following circumstances taken together support a decision not to exercise the discretion to reduce the plaintiff’s costs at all. Firstly, the defendant has acknowledged that it has not suffered any prejudice. Secondly, even if the plaintiff had fully prepared and investigated the claim well before she issued proceedings, there would still have been much uncertainty on the question of her future economic loss. In 2004 the plaintiff had only just returned to complete her secondary education at LeFevre High School. Even at trial there was uncertainty as to whether a particular form of hearing aid might assist the plaintiff. It was therefore extremely unlikely that the parties would have settled if the plaintiff had formulated her claim before action because of the great uncertainty, at that time, about the plaintiff’s future economic loss. Thirdly, the uncertain state of the medical evidence about the type of meningitis contracted by the plaintiff and the aetiology of meningitis-related hearing loss made settlement only a remote possibility. Fourthly, the underlying legal complexity of the causation issue would always have made settlement difficult and have had the tendency to drive this matter to trial and ultimately an appeal. Fifthly, the substantial costs necessarily incurred because of the complex legal and medical issues relating to causation have not been added to in any way by the failure to formulate before action.
In all of the circumstances a reduction of the plaintiff’s costs for failure to engage in an almost certainly futile attempt to negotiate a settlement to a peculiarly complex, legally and factually claim, would not serve the interests of justice.
Conclusion
I would join in the orders proposed by Gray J.