Redzepovic v Western Health

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0057

DAMIR REDZEPOVIC	Applicant
v
WESTERN HEALTH	Respondent

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JUDGES:	FERGUSON JA, KAYE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2016
DATE OF JUDGMENT:	19 October 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 251
JUDGMENT APPEALED FROM:	[2016] VCC 128 (Judge Dyer)

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NEGLIGENCE – Medical practitioner – Duty of care – Plaintiff presenting with lump in parotid gland – Whether breach of duty by practitioner in diagnosis of lump and recommendation to undergo surgery – Assessment by practitioner of risks of adopting conservative ‘wait and see’ approach.

COURTS – Self-represented litigant – Duty of judge to ensure a fair hearing of trial – Whether judge gave adequate advice and assistance to litigant.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Boston
For the Respondent	Mr J Noonan QC with Ms F Ellis	K & L Gates

FERGUSON JA
KAYE JA
BEALE AJA:

The applicant seeks leave to appeal from a decision of a judge of the County Court,[1] dismissing the applicant’s claim for damages arising from surgery that he underwent at the Western Hospital (‘the hospital’) in Footscray on 1 April 2009.
[1]Redzepovic v Western Health [2016] VCC 128 (‘Reasons’).

The applicant was born in Sarajevo, the capital city of Bosnia Herzegovina, in February 1973, and he migrated to Australia in 1996. By occupation the applicant was a spray painter. In late 2008, the applicant noticed swelling on the left hand side of his face and neck extending along the jaw line to a point near the left ear. He attended his local practitioner, Dr Huynh, who prescribed antibiotics. Subsequently, Dr Huynh referred the applicant for an ultrasound examination, which he underwent on 6 January 2009. The report of the ultrasound examination, dated 7 January 2009, noted a lesion, measuring approximately 3 x 2 x 2 centimetres, described as being ‘closely related to the parotid gland’. The radiologist stated:

The above findings, whilst non-specific, may represent a benign cystic entity such as a branchial cleft cyst. In view of its location, CT is recommended for further characterisation.

Dr Huynh then referred the applicant to the hospital. The applicant first attended the hospital on 12 February 2009. On that date, he was examined by the attending ear nose and throat surgeon, Mr Sorway Chan. Mr Chan made a note of that attendance in the outpatient progress notes of the hospital. Having examined the applicant, Mr Chan performed a fine needle aspiration of the lump which he sent for cytology.

The report of that examination, dated 13 February 2009, was as follows:

Microscopic description:
The smears contain numerous neutrophils in a background of abundant and amorphous granular debris. No epithelial component present.
Diagnosis
FNA neck: features suggest abscess.

At the consultation on 12 February, Mr Chan also referred the applicant for a CT scan, that was conducted subsequently on 5 March 2009. The relevant findings on the radiology report are as follows:

A 34 x 23 x 21 mm … rim enhancing cyst of moderate fluid density (22 HU) is present posterior to the left mandibular condyle and likely arising from the superficial left parotid gland. The left parotid gland is not enlarged relative to its contra lateral counterpart and is of a similar density with no surrounding inflammatory changes.

In the conclusion section of the report, the radiologist (Professor Robert Berkowitz) stated:

Rim enhancing cyst arising from the left parotid gland. Differentials include a first branchial arch cyst, suppurative intraparotid lymph node or cystic metastasis. A benign mixed tumour or Warthin’s tumour is thought unlikely.

The applicant saw Mr Chan again at the hospital on 12 March 2009. On that occasion, Mr Chan advised the applicant that he should undergo a left parotidectomy. At that consultation, the applicant signed a consent form which (among other things) noted the risks and complications that had been discussed with the surgeon. Those risks were written on the form in abbreviated shorthand which is difficult to decipher. Interpreted by the medical witnesses, the risks recorded on the form, as advised to the applicant at that consultation, were: risks of injury to the facial nerve, risk of injury to the great auricular nerve, recurrence of the lump, the need for pathology to be performed in order to advise as to future treatment, and Frey’s syndrome (sweating while eating). The applicant was then booked in for surgery at the hospital on 1 April.

Before that date, the applicant again saw Mr Chan on 26 March, in which the operation was discussed between them. The operation was conducted on 1 April by Mr Charles Hall, an ear nose and throat surgeon. In performing the operation, Mr Hall noted that the applicant had a cystic lesion of the deep lobe of the parotid, with the main trunks of the facial nerve stretching and intimately associated with the capsule of the lesion. The lesion was completely removed and the facial nerve was intact. Subsequent histology of the lesion demonstrated a Warthin’s tumour (which is a benign tumour) dominated by a central large cystic space filled with necrotic debris. There was no evidence of malignancy.

Following the operation, the applicant suffered, and has continued to suffer from, significant pain and other adverse effects. In the statement of claim in the proceeding, the applicant claimed, that, as a result of the operation, he suffered facial nerve palsy, development of a prominent neuroma at the anterior border of the sternomastoid, neuropathic pain and consequential psychological injury. In essence, the statement of claim alleged that the medical practitioners engaged by the defendant were negligent in their treatment of the applicant in three particular respects, namely:

(1)Conducting the left parotidectomy when there was no need to do so.
(2)Failing to properly advise the applicant that there was no urgent medical need to perform that procedure, and failing to advise him of the risks associated with such an operation.
(3)Failing to perform the operation with reasonable care and skill.

At the trial, the applicant did not pursue the third allegation. The applicant did not adduce any evidence to support the allegation. He did not cross-examine Mr Hall with a view to establishing that the operation had been conducted negligently. The two medical expert witnesses, who were called on behalf of the respondent, Professor Serpell and Professor Sizeland, each expressed the view that the operation had been conducted properly. The applicant did not cross-examine either such witness in relation to that aspect of their evidence.

Thus at trial the critical issues, on the question of liability, were whether the operation performed on the applicant was necessary, and, secondly, whether the applicant had been given proper advice, as to the need for that operation, and as to the risks associated with it. In addition, there was an issue as to whether the applicant would have declined to undergo surgery, if he had been given the advice that ought to have been given to him, but which, he maintained, he did not receive.

Although the applicant had legal representation in drafting the statement of claim, he represented himself at the trial, which proceeded over nine hearing days. In the course of the hearing, the judge gave assistance to the applicant, in a manner which we shall later describe in more detail. In particular, the judge assisted the applicant in his evidence in chief, and helped the applicant adduce evidence from his medical witnesses by, in effect, conducting their evidence in chief for him. In addition, the judge asked questions of the witnesses called on behalf of the respondent, in order to assist the cross-examination of those witnesses by the applicant.

In his reasons for judgment, the judge concluded that at the consultation on 12 March 2009, Mr Chan had given advice to the applicant of the risks that were set out in the consent form, and to which we have referred. His Honour considered that those risks were the relevant risks which were required to be communicated to the applicant. His Honour held that the ‘overwhelming medical opinion’ in the case was that the lump, detected on the applicant’s left cheek, needed to be surgically excised. Accordingly, the judge found that there was no breach of duty on behalf of the respondent in recommending to the applicant that he should undergo that surgery. His Honour also found that the applicant’s current complaints were largely, if not wholly, related to neuropathic pain, and there was no evidence to suggest that that pain was a foreseeable risk of parotidectomy. Accordingly his Honour found that there was no causal link between the surgical procedure and the applicant’s neuropathic pain.[2]
[2]Reasons [74], [75].

Issues in the appeal

The applicant originally relied on five grounds of appeal, namely:

1The learned trial judge erred in finding that the warnings in fact given on the risks of parotidectomy were ‘thoroughly and professionally explained’ … and were ‘reasonable and adequate’.
2The learned trial judge erred in finding that the parotidectomy was reasonable and appropriate …
3The learned trial judge erred in finding that the respondent did not breach its duty to the applicant …
4The learned trial judge erred in finding that there was no causal link between the surgery and the applicant’s post-operative condition because there was no evidence to suggest that the development of neuropathic pain said to commence immediately post-surgery, is a foreseeable risk of parotidectomy.
5The learned trial judge failed to provide the applicant with the appropriate scope of assistance required to be provided to a self-represented litigant and questioned the expert witnesses in a way that made the trial unfair to the applicant.

In the course of submissions relating to ground 1, counsel for the applicant initially contended that before the applicant underwent the parotidectomy, he was not advised of a number of risks, including that of the occurrence of a neuroma, associated with that form of surgery. The evidence did not establish that any of those risks, except that of a neuroma, may have eventuated. It is well established that the inquiry whether, in a particular case, a medical practitioner has complied with the duty of care to warn of material risks, is directed to the risk or risks which eventuated, and not to some other unrelated consequence of the medical treatment provided by the practitioner. The question of the content of the duty arises where a risk of treatment, which was not advised to the patient, eventuates.[3] Thus, the issue raised by ground 1 was whether the respondent breached its duty of care to the applicant in not advising him of the risk of a neuroma development. In the course of submissions, counsel for the applicant accepted that if this Court concluded that the trial judge was correct in finding that the advice given to the applicant, to undergo the parotidectomy, was appropriate, the applicant could not contend that he would not have accepted that advice, even if he had been warned of the risk of neuroma associated with the surgery. In our view, that concession was entirely correct in the circumstances of the case. It follows that if the applicant does not succeed on ground 2, his appeal would fail, even if this Court upheld ground 1.
[3]Wallace v Kam (2013) 250 CLR 375, 385–6 [24]–[25].

In turn, senior counsel for the respondent, in the course of submissions, accepted that if the applicant succeeded on ground 2, on the basis that the respondent’s practitioners should not have advised the applicant to have undergone the parotidectomy, the evidence established a sufficient causal nexus between that medical procedure undertaken by the applicant and the injuries of which he complained in his evidence.

In those circumstances, ground 1 and ground 4 are each otiose, and it was agreed by counsel that this Court should not address them. The critical issues on appeal, therefore, are:

(1)Whether the judge erred in finding that the parotidectomy was reasonable and appropriate (grounds 2, 3).
(2)Whether the judge failed to provide to the applicant the appropriate assistance required to be provided to a self-represented litigant and whether the judge’s questioning of the expert witnesses made the trial unfair to the applicant (ground 5).

The evidence

In order to properly consider those grounds of appeal, it is necessary to set out, in some detail, the evidence given at the trial.

The plaintiff gave evidence that in November or December 2008 he felt some swelling to the side of his face and neck. It was uncomfortable because he had to wear a mask at work. He attended the general practitioner (Dr Huynh), who told him that it could be a cyst or a cancer or tumour, and he sent the applicant to have an ultrasound. After the ultrasound was performed, Dr Huynh referred the applicant to the hospital.

The applicant’s evidence was that the first time that he attended at the hospital was on 5 March 2009 to undergo a CT scan. After that, he had an appointment with Mr Chan. When he attended that appointment, Dr Hall and a Dr McGill-Brown were also present. He asked the doctors if his problem could be an abscess, because he had had abscesses in the past which he had treated himself. Mr Chan told him that he needed to take a sample from his neck. So, according to the applicant, they proceeded to another room, the applicant lay down, and Mr Chan extracted yellow fluid by using a needle. The applicant said that thereupon Mr Chan looked worried, and when the applicant asked him what it was, Mr Chan replied ‘It’s cancer’. The applicant testified that he asked him ‘Are you sure?’, to which Mr Chan responded ‘Yes’. He said that Mr Chan looked very worried at the time. The applicant asked him how long he had to live, and Mr Chan said he had about three months to live, if they did not proceed to undertake surgery on him. He was told that the surgery would have to be ‘going over the face’, and that they would have to enter from the top of the face, because of the location of nerves in the face. He said he was told that there was a possibility that after surgery for a couple of weeks he would experience sweating on the side of the face when he was eating, but that would go away. He told Mr Chan that he was concerned that clips not be used in the course of his operation.

The applicant then stated that he subsequently received a letter saying that he had to come in for surgery. He said that he asked the doctor if he would need chemotherapy and radiotherapy, and he was told that they would have to see when they removed the lesion.

The applicant underwent the surgery on 1 April 2009. The applicant gave evidence as to the pain and disability that he suffered after the operation. He said that about four or five days after the operation, he developed more pain in the face and neck, and developed redness and swelling that looked like an infection. He attended his general practitioner, who told him that ‘it’s normal, it’s all good’. When he attended Mr Hall to have the stitches removed, Mr Hall told him that the nerve had been damaged, and it would take at least six months to repair. He said that subsequently, when seeing the other doctors, they had assured him that there was no problem, notwithstanding that he continued to suffer a lot of pain, redness and swelling. Ultimately, he went to see Dr Peter Andrianakis, who referred the applicant for a CT scan, which demonstrated that there were five clips in situ, that were causing the pain and infection.

The applicant said he was referred to Mr Graeme Brazenor, a neurosurgeon, and Professor John Kennedy. He said that Professor Kennedy had stated that he should undergo surgery to have the clips removed and that he had a neuroma. The applicant did not wish to undergo that surgery so he declined to do so. The applicant then gave evidence as to the medication that he was taking for relief of pain, and to his ongoing symptoms.

In cross-examination, the applicant confirmed that he did not see Mr Chan until after he had the CT scan in February 2009. He said that the CT scan was done first, then he saw Mr Chan. Thus, he said, if the CT scan was not done until 5 March, the fine needle biopsy could not have been done on 12 February. The applicant confirmed that he told Mr Chan that initially the lump was painful, and he said that he may have told Mr Chan that it had been decreasing in size. He denied that Mr Chan examined his neck or his mouth. The applicant maintained that after the fine needle aspiration, Mr Chan told him that he had a tumour and that he had three months to live. He said that the only risk of the operation, which Mr Chan advised him about, was that of sweating when eating. He rejected the proposition put to him that Mr Chan did not diagnose him at that consultation. He said that apart from the sweating, the only other advice given to him by Mr Chan about the operation was that there was an unimportant nerve which sometimes gets cut, but that only happened with old people, and would not happen to him.

The applicant denied that, after the initial consultation at which the fine needle aspiration was taken, he attended a further consultation with Mr Chan. He again insisted that he was told by Mr Chan, at the first consultation, that he had cancer and that he had three months to live. He said that Mr Chan did not discuss the CT scan with him. He said that the other doctors, at the first consultation, looked at the scan and told him it was a lump. When pressed by counsel about the hospital records (which noted that he first saw Mr Chan on 12 February, and that he underwent the CT scan on 5 March), the applicant stated that he believed that the hospital’s records had been falsified. He denied that he signed the consent form on 12 March. He also denied that, on that date, Mr Chan told him about the risks that are noted on the consent form. He also denied that if he had been told of those risks, he would have undergone the surgery.

The applicant called Mr Michael Long, a general surgeon, to give expert evidence on his behalf. Mr Long saw the applicant on 12 March 2013, and provided three reports to the applicant’s then solicitors, that were tendered in evidence. In his first report, Mr Long expressed the view that the applicant had developed neuropathic pain in the region of the neck, that was aggravated by a greater auricular nerve neuroma and possibly by some depression. Mr Long stated that the surgeon should have diagnosed, pre-operatively, that the applicant had a Warthin’s tumour, which is a common benign parotid tumour. The tumour was located in the deep lobe of the parotid, which is an area that is difficult to access, without causing injury to the facial nerve. Accordingly, the applicant should have been told that surgical treatment was not mandatory, and that it could be treated by conservative management, without operative intervention. He said that parotidectomy should only be undertaken, particularly in someone with the applicant’s background, after very detailed consultation with the patient.

In his third subsequent report, Mr Long stated that at the time he wrote the initial two reports he was unaware of the CT report. He said the radiologist’s comments were regarded as significant, but from a clinical sense they could not be regarded as diagnostic, nor to have excluded the probability of a Warthin’s tumour. He stated that the radiologist’s report alone was not a sufficient reason to exclude the occurrence of a Warthin’s tumour.

In his evidence at the trial, Mr Long stated that it is not necessary to excise a Warthin’s tumour. He said that most of those tumours are not removed. The appropriate treatment is conservative, by repeatedly aspirating the tumour and having the aspiration checked by a pathologist. Mr Long stated that the tumour was in the deep lobe of the parotid, which is an unusual site for tumours, and it is more difficult and dangerous to remove a tumour from that location. He would be very reluctant to operate on such a patient unless that patient fully understood the implications of the surgery. One common complication of such surgery is a painful neuroma of the great auricular nerve.

Mr Long said that aspirational biopsies are the usual procedure to check the tumour. He considered that an MRI was more useful than a CT scan, but the radiology ‘just goes into the mix of making the diagnosis’.

In cross-examination, Mr Long stated that parotid tumours are rare, but that the Warthin’s tumour is a common form of parotid tumour. He agreed that, in the absence of epithelial cells, the cytology did not indicate whether or not the lump was benign or malignant. He stated that non-epithelial malignant tumours can occur. However, if there were malignant cells, they would be detected, even in the absence of epithelial cells. Thus, the cytology pointed ‘very much’ to a benign diagnosis. He agreed that the presence of neutrophils in the cytology did not assist in the diagnosis. He said the cytology did not exclude the possibility of malignancy, but it was a ‘very remote possibility’, because of the absence of epithelial cells. He agreed, however, that the cytology did not enable a definitive diagnosis to be made.

Counsel then cross-examined Mr Long about the CT scan. He confirmed that he did not have a copy of the scan at the time that he wrote his first report. He stated that there was no evidence that the clinicians had read the report. He also stated that there were numerous instances when inappropriate surgery had been directed by CT reports. He said that, while the CT scan made reference to the Warthin’s tumour being an unlikely diagnosis, it was a matter for the treating medical practitioner to make the call. He said that notwithstanding the contents of the CT report, the risk of the tumour being malignant was ‘very slight’. He disagreed with the proposition that the size and position of the tumour militated against it being a Warthin’s tumour. The fact that the lump was painful did not indicate that it was malignant, because that was also consistent with infection. He agreed, however, that it could be a hallmark of malignancy.

When cross-examined further about the CT scan, and the fact that the applicant suffered from pain from the lump, Mr Long said that the possibility of the tumour being malignant was very low because of the cytology. He agreed that the fact that there were no epithelial cells in the aspirate did not necessarily mean that there were no epithelial cells in the parotid lump. Mr Long accepted that most modern surgeons do remove parotid tumours, because of the risk of not knowing whether they are benign or malignant. He agreed that on a CT scan it is difficult to determine the position of the parotid tumour.

Mr Long agreed that if a Warthin’s tumour is left in situ, it tends to grow larger, and it can become inflamed, infected, and painful. He also agreed that conservative treatment is generally not recommended for younger patients.

Counsel then cross-examined Mr Long about the risks of surgery that were noted on the consent form dated 12 March 2009. He agreed that it was appropriate to advise the applicant of those risks. He also agreed that he did not take issue with the recommendation by the surgeon to proceed to surgery, with the proviso that the decision should have been left to the patient. He said, however, that he would not strongly recommend the surgery to the applicant.

Dr Peter Ellims, an oncologist and clinical haematologist, first saw the applicant in June 2011. A PET scan conducted on the applicant was negative for malignancy. Dr Ellims considered that it was most likely that the applicant had a neuroma associated with neuralgia. He referred the applicant to Mr Brazenor, a neurosurgeon, who was of the view that it was not appropriate to operate to remove the neuroma. Counsel for the respondent did not cross-examine Dr Ellims.

Dr Peter Andrianakis, a general practitioner, first saw the applicant on 16 June 2009, and he has continued to treat and manage the applicant’s condition since that time. His treatment consisted primarily of managing the applicant’s pain by prescribing medications, including Lyrica, Endone, Tramadol and occasionally Keflex. He also prescribed anti-inflammatory medication in the form of Naprosyn and Prednisolone. Dr Andrianakis stated that he had referred the applicant to a pain specialist and also to a facial maxillary specialist in order to see if the clips that were inserted could be removed.

The first witness on behalf of the respondent was Mr Chan. Mr Chan stated that he first saw the applicant on 12 February 2009. His notes indicated that the applicant had had a left sided neck lump that first appeared two months previously, that initially it was painful, and that it had reduced in size during the previous two months. His notes also indicated that he had available at that time an ultrasound report dated 7 January 2009. The relevant feature of that report was that it stated that the lump measured about 3.1 centimetres, and it raised the issue whether it was related to the parotid gland. Mr Chan then examined the applicant, in the course of which he palpated the lump, and measured it to be approximately 3 centimetres. He considered that it was probably parotid in origin. He also looked in the applicant’s mouth because, if it was a deep lobe tumour, there might be asymmetry and distortion of the tonsils. Mr Chan also conducted a fine needle aspiration on that date, and he sent the material for cytology. On aspiration, yellow fluid was removed. Although he could not recollect the consultation, he said he would have told the applicant that he was going to send the fluid for cytology. He also organised a CT scan of the applicant’s neck. He denied that he had the results of a CT scan available at the time of the consultation, because if that was available, he would have written it on his notes.

Mr Chan stated that he considered at that stage that it was probably a parotid mass. While most tumours in that area are not malignant, most of them are difficult to diagnose based on fine needle aspiration. Accordingly, he ordered a CT scan, which was conducted on 5 March.

Mr Chan stated that his next consultation with the applicant was on 12 March. On that date, the applicant still had a lump in the parotid region. The CT report was then available. It indicated that it was probably a cyst within the left parotid gland. Thus the differential diagnosis was that of a cyst, an infected parotid lymph node, or cystic metastasis, which meant a cancer that presented as a cyst. The CT scan excluded a cyst outside the parotid gland. It also noted that a benign mix tumour or Warthin’s tumour was unlikely. He said that a Warthin’s tumour is a benign cyst of the parotid gland which is not uncommon and is probably the most common benign cyst of the parotid gland.

Mr Chan said that the cytology report did not assist in determining whether the tumour was malignant or not, as there were not enough epithelial cells available to enable such a diagnosis to be made.

Mr Chan stated at that stage, he knew that the lump was a mass within the parotid gland, that was probably infected at some stage, which explained why it was painful. The histology indicated it probably was not a Warthin’s tumour, and the only way to confirm the diagnosis was to excise the lump. Mr Chan at that stage considered that the mass was probably benign, because most parotid masses are benign. However, the most common parotid tumours have a small tendency to transform into cancers. Mr Chan said that, because of the uncertainty, he recommended that the applicant undergo a parotidectomy to remove the lump. He recommended surgery because of the possibility that the lump might be malignant. He said that if the applicant had been at all concerned about undergoing surgery, he would have offered to him the option of conservative treatment by keeping it under observation, but he would have strongly advised against it. He said that in the case of a patient who was young (such as the applicant) he would recommend surgery. He said that if the lump is not removed and it subsequently grows, the surgery becomes more difficult, particularly if the lump becomes malignant. Generally, the risks of a parotidectomy, when properly performed, are small.

Mr Chan further stated that he would have recommended that the operation take place within three months. He would have told the applicant that there was a small possible risk that the lump could be cancerous, but he would not know until it had been excised.

Mr Chan then gave evidence about the risks of surgery, that he discussed with the applicant, by reference to the consent form dated 12 March. He said that he would have advised the applicant that the largest concern was with damage to the facial nerve that could cause paralysis. He said that normally if that occurs it is only temporary. He also said that the surgery would also involve the risk of interference with the great auricular nerve, with the consequence that the patient might suffer numbness to the ear lobe for some time. He would also have advised the applicant that it was possible for the lump to recur. In addition, the final diagnosis would be dependent on the pathology of the excised lump, which would determine the further treatment that would need to be given to the applicant. Further, he would have discussed with the applicant the risk of Frey’s Syndrome. Mr Chan stated that after he explained those risks, the applicant signed the consent form.

Mr Chan saw the applicant again on 26 March 2009 to discuss the operation and the applicant’s concerns about it. At the end of that discussion, it was agreed that the surgery would proceed.

In cross-examination by the applicant, Mr Chan denied that, on the occasion on which he performed the fine needle aspiration to the applicant, he told the applicant that he had cancer. He said he would not have done that, because he did not have the cytology report or the imaging results at that stage. He also denied telling the applicant that the surgery involved a risk of cutting an unimportant nerve, which would only happen with older people. He said he doubted that he performed the fine needle aspiration in a different room, because ordinarily he would do it in the room in which he examined the patient.

The next witness for the respondent was Mr Hall. He stated that he did not recall meeting the applicant before the day of the operation, on 1 April. He did not have any discussion with the applicant about recommending surgery, or about the risks inherent in the surgery. He said that he would have complied with standard pre-operative practice of meeting with the patient to confirm the consent form, and to go through any questions that he might have. He said that while he did not have any recollection of discussing the risks of surgery with the applicant on that day, his normal practice was to go through the risks that had been outlined on the consent form, and to make sure that the patient did not have any questions.

Mr Hall said that the primary aim of treatment of a benign parotid tumour is to remove the lump, because benign parotid tumours can have a potential to turn into a malignant lump with time, and also they tend to grow. Before the lump was excised, he was not aware that he was necessarily dealing with a benign lump, and there was some evidence from the investigations that it might be malignant. There was not strong evidence that the lump was malignant, but there was an element of doubt in that respect. Mr Hall stated that in those circumstances the recommended treatment is to excise the lump completely.

In answer to questions from the judge, Mr Hall stated that if there was a strong suggestion on the cytology that the lump was a benign mass, he would generally remove a Warthin’s tumour, particularly in a young patient.

Professor Jonathan Serpell, a general surgeon specialising in endocrine surgery, gave evidence on behalf of the respondent. In his report, which was tendered as part of his evidence, Mr Serpell stated that the applicant had a 3.5 centimetre mass in the left parotid gland. On the basis of the size of that mass alone, most surgeons would recommend parotidectomy. He said that most large parotid masses are tumours, the majority of which are benign, but some of which are malignant. Warthin’s tumours are usually located in the inferior position of the parotid gland. The applicant’s mass was in the superior position. That factor, together with the CT report, suggested that the applicant’s tumour was unlikely to be a Warthin’s tumour. There was no material in the cytological aspirate upon which the applicant’s parotid mass could have been diagnosed pre-operatively. On the other hand, the CT scan had raised the possibility of a cystic malignancy.

Mr Serpell further stated that cytology does not necessarily establish the precise histopathological diagnosis of a parotid mass. In the case of the applicant, the cytology did not obtain any epithelial material, so that it did not indicate whether the parotid lump was benign or malignant. On the other hand, the CT scan showed a large parotid lump, and the report raised significant concerns about the possibility of a malignancy. In addition, the applicant’s history of pain in the parotid lump was a potential indicator of malignancy.

Mr Serpell further stated in his report that if it is known that a patient has a Warthin’s tumour pre-operatively, most parotid surgeons would recommend removal of it, because Warthin’s tumours tend to grow over time, they become inflamed and infected, and develop into large painful masses. In addition, there is a very small (less than one percent) risk in a Warthin’s tumour of malignant transformation.

Having reviewed the medical records including the pre-operative consent form, Professor Serpell considered that the applicant would have been appropriately advised of the risks of the procedure. He also expressed the view that the operation was conducted appropriately and well. He expressed the view that the applicant’s doctors could not have known, before the operation, that the tumour was in the deep lobe. CT scanning and ultrasound do not enable a surgeon to confidently know whether a tumour is in that position.

In evidence at the trial, Professor Serpell confirmed the contents of his report. He said that while most parotid lumps are benign, pain is a ‘flag’ that the lump could be malignant. He said most parotid lumps are benign and usually small, about one or two centimetres. The applicant had a larger lump, which appeared relatively quickly. He said that feature raised a concern that it could be malignant. The relevance of the ultrasound was that it indicated the size of the lump (3.1 centimetres). Professor Serpell said that it was not relevant that the lump might be cystic, because benign and malignant tumours can be cystic.

Professor Serpell confirmed that it was only possible to make a diagnosis, from the cytology, if it contained epithelial elements. Thus, in the case of the applicant the cytological aspirate did not establish whether the lump was benign or malignant. The CT scan was helpful, because it confirmed the size of the lump. However, it was not of assistance in determining whether the lump was in the superficial or in the deep lobe. The CT report noted that the lump was behind the condyle of the mandible, in other words, it was relatively high up in the parotid knot. That was a factor that indicated that it was not a Warthin’s tumour.

Professor Serpell stated that based on the information available to the surgeon, it was not possible to say definitively whether the lump was benign, and there were a number of pointers that it was unusual, and that it could be malignant. It is never possible to be totally sure whether a lump is benign or malignant until it has been excised. That is one of the reasons why almost all parotid lumps should be removed. Indeed, some parotid surgeons do not do cytology before operating. Professor Serpell stated that in the circumstances he would have recommended surgery, and he agreed with the recommendation that was given to the applicant. He said that it would be risky not to recommend surgery for a 36 year old patient with a large undiagnosed lump in the parotid that possessed some concerning clinical and radiological features.

In respect of the surgery by Mr Hall, Professor Serpell stated that almost always the great auricular nerve cannot be preserved in a parotidectomy. Thus, there was no dereliction on the part of the surgeon in dividing the great auricular nerve.

The second expert witness to be called on behalf of the respondent was Professor Andrew Sizeland, who practises as an otolaryngologist, head and neck surgeon, at the Peter MacCallum Cancer Institute. In a report to the respondent’s solicitors, and in a conference with the solicitors, the notes of which were tendered as evidence, Professor Sizeland expressed the view that the decision by the respondent’s medical practitioners to operate on the applicant was appropriate. It is generally not possible to be sure of the pathology of a parotid tumour until after it has been excised. In particular, fine needle aspiration cytology alone is not sufficient to obtain a diagnosis. Radiology cannot definitely identify whether a lesion is present in the deep or superficial lobe. In the circumstance where the applicant was young, the mass was 34 millimetres, and he had a history of pain, and in which it could not be diagnosed pre-operatively, it was entirely appropriate for the surgeon to recommend its removal.

In evidence, Professor Sizeland elaborated on those views. He stated that the ultrasound was useful, because it informed the practitioner that it is likely that the tumour was within the parotid gland, that it was a cyst, and that it was non-vascular. However, the fact that it was a cyst did not indicate whether it was benign or malignant, although parotid cysts are more commonly benign. He said that the fluid extracted on fine needle aspiration was one more piece of information, but it was not definitive. The fine needle aspirate pointed to the lump being more likely to be benign. The fine needle cytology report was of no definitive diagnostic assistance, because, in the absence of epithelial cells, there was no information as to whether the lump might be benign or malignant. He said that taking into account the ultrasound report and the cytology, no assurance could be given to the patient that the lump was not malignant. He would not recommend that the lump be managed conservatively in light of the cytology report and the ultrasound findings. In particular, because the applicant was young, there was a small chance that if the lump was benign, it may become malignant in the years to come.

Professor Sizeland stated that the CT report was relevant because it described the cyst as being rim enhancing. That meant that there was active growing tissue that had a blood supply, and the fact that it was enhancing meant it was either inflamed or actively growing. He said that those factors weighed in favour of removing the lesion. In respect of the differential diagnosis of the radiologist, Professor Sizeland stated that a first branchial cyst is rare and would be lowest in the order of possibilities. He said that the cystic variant of a tumour or a metastasis would be the most likely cause of the lesion in the parotid. In the case of the applicant, the lump was 3 centimetres in size, which was not a factor in favour of it being benign. He said ‘… you can’t say from the … size whether a lesion would be benign, or malignant’.

Mr Sizeland said that in the circumstances he would advise the patient that it was not possible to make a definitive diagnosis without taking the lump out. He would tell the patient that he could not say that it was definitely going to be a benign lump, and he would say to the patient words to the effect:

if you want to take the risk and live with what could be a potential cancer knowing that if you delay treatment by a week, or a month that cancer could be the thing that kills you. Now I think that’s a pretty big risk, the downside’s pretty high. So I’d be explaining that and saying for those reasons I’d want to take the lump out.

In those circumstances Mr Sizeland stated that he would have recommended undertaking surgery, and he would not have recommended managing the lump conservatively. He said he would have advised that the tumour be removed within six to eight weeks.

The judge’s reasons

The judge commenced his reasons by noting that the factual background to the plaintiff’s claim was heavily in dispute, and that the evidence adduced on behalf of the respondent supported the accuracy of the records that were admitted into evidence.[4] Thus, the judge concluded that notwithstanding the applicant’s recollection, the evidence was strongly suggestive that he did first attend the hospital on 12 February 2009.[5] The judge stated that he was unable to accept the applicant’s evidence as to the sequence of events, because they were inconsistent with the notes of the radiologist that the CT scan was performed on 5 March 2009, and the clinical records that demonstrated that the fine needle biopsy was performed on the date of the first attendance on 12 February 2009.[6] His Honour stated that the sequence of investigation and treatment, before surgery, was also supported by the oral evidence of Mr Chan, who impressed him as a ‘careful and reliable witness’.[7] The judge accepted the evidence of Mr Chan that the examination that he conducted on the applicant included an oral examination, and an examination of the function of the facial nerve and the skin in the area of the lump.[8] The judge also accepted that the hospital records demonstrated that the consent to the procedure was obtained by Mr Chan on 12 March 2009, the same date as the second recorded consultation. His Honour accepted the evidence of Mr Chan as to the risks and complications of surgery that were discussed with the applicant, namely, the risks set out in the consent form.[9] His Honour stated:

Having heard evidence from other medico-legal consultants, particularly Professors Serpell and Sizeland, I am satisfied that the risks and complications noted were relevant risks to be discussed with the patient prior to consent to the procedure being sought.
…
In the present case I am satisfied that Mr Chan did provide Mr Redzepovic with a thorough and professional explanation of the reasons for recommending surgery and the relevant risks flowing from that surgical procedure.[10]

[4]Reasons [7]–[8].

[5]Reasons [24].

[6]Reasons [28].

[7]Reasons [29].

[8]Reasons [30].

[9]Reasons [37].

[10]Reasons [39], [41].

The judge then turned to the question whether surgery ought to have been conducted on the applicant. He summarised the views expressed by Professor Serpell, and stated:

In my view the evidence given by Professor Serpell was highly persuasive of the proposition that such a lump would ordinarily be surgically excised, save in certain older patients, largely because of the need to obtain a definitive diagnosis which could only be achieved by excision in pathologic examination.[11]

[11]Reasons [47].

The judge then summarised the evidence of Professor Sizeland, and stated that the ‘only contrary view’ to surgical excision was that provided by Mr Long.[12] The judge considered it remarkable that Mr Long’s first two reports had been written without being provided with the pre-operative CT scan taken on 5 March 2009, in which the radiologist had expressed the opinion that a benign mixed tumour or Warthin’s tumour was thought unlikely.[13] The judge then noted that much of the applicant’s concern was because of the use of surgical clips, but that (with the exception of Dr Andrianakis) medical opinion was that the use of such clips was appropriate.
[12]Reasons [55].
[13]Reasons [59].

The judge then concluded as follows:
The overwhelming medical opinion in this case is that the lump detected in Mr Redzepovic’s left cheek needed to be surgically removed to enable a full diagnosis and an exclusion of malignancy by full pathological examination. This has the support of the two surgeons directly involved in the treatment at Western Health and the two highly qualified consultants who provided opinions on behalf of the defendant.
I am concerned at the opinion of Mr Long suggesting, in effect, a ‘wait and see’ approach in a patient who was only thirty-six years of age at the date of the surgery in circumstances where the CT scan performed shortly prior to the surgery noted the lump as being at least possibly a cystic metastasis.
If criticism is to be levelled at the defendant, then it is a criticism of form rather than of substance. I am satisfied that the parotidectomy performed was medically warranted and indeed highly desirable in view of the lack of an accurate diagnosis of the precise nature of the lump. I am also satisfied that the advice to proceed with surgery and the warnings given, particularly by Mr Chan, of the risks of surgery, were reasonable and adequate. Nevertheless, the provision of some written documentation or the accurate recording in records in a legible form of the substance of the advice and warnings given to Mr Redzepovic would have no doubt shortened this proceeding considerably if not avoided the litigation altogether.
I am, however, satisfied that the oral evidence from Mr Chan in particular and the commentaries offered by Professor Sizeland and Professor Serpell lead to a conclusion that informed consent for the procedure was obtained and that the procedure of left parotidectomy was reasonably and appropriate. I therefore find that there has been no breach of duty made out by Mr Redzepovic.
Having found that there is no breach of duty on behalf of the defendant, the case brought by Mr Redzepovic against Western Health must be dismissed.
Grounds 2 and 3: whether the surgery should have been performed

Counsel for the applicant submitted that the judge erred in concluding that the decision to undertake a parotidectomy was reasonable and appropriate. In particular, counsel submitted that the judge erred in relying on what he described as ‘overwhelming medical opinion’ that the lump detected in the applicant’s left cheek needed to be surgically removed to enable a full diagnosis and an exclusion of malignancy by pathological examination.[14]
[14]Reasons [69].

In support of that submission, counsel contended that, because Mr Chan and Mr Hall were involved in the treatment of the applicant, they were not independent, and they ‘should have been excluded’ from the judge’s reasoning. Counsel submitted that the evidence of Professor Serpell was flawed. First, he submitted that both Professor Serpell and Professor Sizeland made the mistake of assuming that the lump was painful at the time of surgery, which was contrary to the evidence of the applicant that it was pain free at that time. Secondly it was submitted that Mr Serpell failed to consider a number of matters, including the fact that Mr Chan’s oral examination of the applicant did not suggest a malignancy, the fact that the applicant was a smoker and suffered from post-traumatic stress disorder, and the fact that the applicant had a history of lumps on the right hand side of his neck which he himself had treated by self-incision. Thirdly, it was submitted that Professor Serpell was wrong in emphasising that the size of the lump was a factor supporting surgery, when (according to counsel for the applicant) that consideration was contradicted both by Mr Serpell’s own evidence and the evidence of Professor Sizeland. Counsel also submitted that Mr Chan’s evidence was that he was told by the applicant at the first presentation that the lump had reduced in size after it first developed.

Counsel further submitted that the decision to perform the surgery was not an appropriate response to the risk of malignancy. In that respect, he referred to the evidence of Dr Ellims, which, he maintained, was to the effect that a PET scan could have been used to detect whether or not the lump was malignant. Secondly, it was submitted that the decision to undertake surgery was made on flawed grounds. Counsel submitted that the CT scan was flawed. In particular, the radiology report contained a notation that dental artefact degraded the image quality. Counsel also referred to a letter of Mr Brazenor that the quality of the pre-operative CT scan was so bad that he was ‘incredulous’ that the surgeons operated on the basis of it. Counsel submitted that the cytology was of no assistance in the diagnosis, because the aspirate taken from the lump did not contain any epithelial cells. Thus, he submitted, the only diagnostic information available to the surgeons was the ultrasound, which pointed to the lump being a benign cyst. Thirdly, counsel submitted that Mr Chan’s recommendation paid no proper regard to the applicant’s circumstances, including his medical history. It was submitted therefore that, in those circumstances, contrary to the conclusion of the trial judge, the option suggested by Mr Long, to ‘wait and see’, was open, and the judge should have concluded that it was not necessary for the respondent’s practitioners to recommend that the applicant undergo surgery.

In response, senior counsel for the respondent submitted that the finding by the judge, that the surgery was reasonable and appropriate, was open on the evidence. He submitted that the evidence of Mr Chan and Mr Hall was relevant and admissible. They were both qualified surgeons, and it would have been erroneous for the judge to have disregarded their evidence. Counsel further submitted that, properly understood, the evidence of Professor Serpell and Professor Sizeland referred to the fact that the lump had previously been painful at the time it manifested itself, which was relevant in determining whether there was a risk that the lump was malignant. Similarly, counsel submitted that the criticism of Professor Serpell’s evidence, relating to the size of the lump, was misconceived. Professor Serpell identified that the size of the lump and the rate of its appearance could be an indicator that it was malignant. Professor Serpell considered that that was an unusual and troubling feature of the lump.

Counsel further contended that Dr Ellims’ evidence was equivocal as to whether a PET scan could assist in determining whether a parotid lump was malignant. In any event, Dr Ellims stated, in his evidence, that a PET scan could not completely confirm that a tumour was not malignant. Counsel noted that only Mr Brazenor considered that the CT scan was of no assistance. The two radiologists, who compiled the report, considered that the quality of the scan was sufficient. Professor Serpell reviewed the scan itself, and there was no suggestion in his evidence that it was not capable of being accurately interpreted. The CT scan was an important piece of evidence, first, because the report included cystic metastasis as a differential diagnosis, and also because it expressed the view that a benign mixed tumour or Warthin’s tumour was unlikely.

Counsel submitted that, based on the information available before the surgery was undertaken, the overwhelming medical opinion in the case was that it was not possible to exclude the risk that the parotid lump was malignant, unless it was excised and subjected to histological examination. None of the investigative steps undertaken before the operation were able to exclude the possibility that the lump was malignant. The medical evidence was to the effect that, given the young age of the applicant, it would have been unwise to have adopted a conservative ‘wait and see’ approach, both because of the risk that the lump might be malignant, and also because it might become malignant or grow or become infected.

Legal principles

It is well established that the standard of care to be observed by a person with some special skill or competence, such as a surgeon, is that of the ordinary skilled person exercising and professing to have that special skill.[15] In the case of a medical practitioner, that duty requires the practitioner to exercise reasonable care and skill in the provision of both professional advice and treatment. In discharging that duty, the practitioner is required to warn a patient of any material risk that is inherent in that proposed treatment.
[15]Wrongs Act (Vic) s 58; Cook v Cook (1986) 162 CLR 376, 383–4; Rogers v Whitaker (1992) 175 CLR 479 (‘Rogers v Whitaker’), 487; Flinders Medical Centre v Waller (2005) 91 SASR 378, [136]–[137] (Perry J).

In Rogers v Whitaker,[16] the High Court was concerned with the content of the duty of a practitioner to warn the patient of risks associated with a proposed course of treatment. The court rejected the application of the ‘Bolam’ principle[17] namely, that a practitioner is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion although other doctors may adopt a different practice. However in doing so, the court did not exclude, as relevant, responsible professional opinion, particularly in a case which is concerned with the question whether the diagnosis or treatment of a patient has been performed with reasonable care and skill. The plurality stated:

The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor/patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. … Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.[18]
[16](1992) 175 CLR 479.
[17]Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
[18]Rogers v Whitaker 489 (citations omitted).

Analysis

It is first necessary to address the submissions made by the applicant that the views expressed by Professor Serpell and Professor Sizeland, and the conclusions of the primary judge, were based on an incorrect understanding of features relating to the applicant’s presentation at the time of diagnosis.

Contrary to the submission by counsel for the applicant, Professor Serpell and Professor Sizeland did not incorrectly assume that the lump was painful at around the time of the surgery. The evidence of each of those experts clearly demonstrates that their views were based (in part) on a correct understanding that at or about the time that the lump first appeared, it was then painful.

The letter of instruction by the respondent’s solicitor to both practitioners accurately stated that aspect of the history of the lump. In his report, Professor Serpell recited that history, noting that when the applicant was first seen by Mr Chan on 12 February 2009, he reported a two month history of an upper left neck lump, which had fluctuated in size ‘… and had been painful but had become less painful’. However, in addressing the question whether it was appropriate to perform the parotidectomy, Professor Serpell took into account (among other matters) the fact that the applicant had had pain. In context, and indeed as expressed, that part of Professor Serpell’s report clearly referred to the information that was available to him, namely, that the lump had been painful, but that the pain level had reduced by the time the applicant first saw Mr Chan in February 2009. Further when, the judge asked Professor Serpell if it was significant that the applicant reported that the lump was originally painful, but was no longer painful at the time of the consultation, Professor Serpell responded that he considered that pain in any lump is a matter of concern. He noted that symptoms, particularly pain, can come and go, and his view was that pain was a ‘potential flag’ of malignancy. Thus, whatever his understanding about whether the lesion was painful at the time of surgery, Professor Serpell’s view, as to the significance of the symptoms of pain, was based on the fact that it had been painful.

Similarly, contrary to the submission made on behalf of the applicant, Professor Sizeland did not proceed on an erroneous understanding in relation to the history of pain connected with the lump. In the notes of conference that were tendered as part of his evidence in chief, he referred to the fact that the applicant had a history of having a painful lump as being a matter that supported the recommendation for the removal of the lump. Consistently with that approach, in his evidence at trial, Professor Sizeland stated that at the clinical examination one of the relevant inquiries was ‘… how long the lump had been present, whether it had been painful or not … ‘.

Accordingly, there was no error by either expert in their understanding of the facts relating to the history of pain suffered by the applicant as a result of the lump. Equally, we are not persuaded that either expert, or Mr Chan, was in error in understanding the evidence relating to the size of the lump. As we have earlier stated, Professor Serpell considered the fact, that the lump was large, as one of the unusual features of it that might be of concern. He said that most parotid lumps are usually small, so that a larger lump of several centimetres (3 to 4 centimetres), appearing relatively quickly, was a concerning feature that could indicate malignancy. However, he added that the size of the lump did not ‘necessarily’ indicate what the underlying pathology actually was. There was nothing inconsistent in those two statements. In short, Professor Serpell was of the view that the size of the lump was a possible indicator that it was malignant, but it did not necessarily mean that it was malignant.

In that context, counsel for the applicant also focused on evidence by Mr Chan that he had been told by the applicant, at the first presentation, that the lump had reduced in size since it first developed, and he stated that a reduction in size ‘might’ change his management of it. However, and importantly, Mr Chan added that when the applicant returned to see him on 12 March 2009, he still had the lump present, so that the lump had not disappeared after a period of six weeks since the first consultation.

Counsel for the applicant also criticised the reliance by Mr Chan, and by Professor Serpell and Professor Sizeland, on the content of the CT scan, in light of the remarks made about the quality of that scan by Mr Brazenor. The short answer to that point is that, notwithstanding the notation on the radiology report relating to the effect of the presence of dental artefact, the radiologists were able to express conclusions about the scan in an unqualified manner. Professor Serpell viewed the scans himself. While the scan, and the report, were not definitive, nevertheless Mr Chan considered it was relevant, because it indicated that the lump was probably a cyst within the left parotid gland. In addition, the report of the scan was relevant, because one of the three differential diagnoses proffered by the radiologist was cystic metastasis.

The criticism by counsel for the applicant of the reliance by the judge on the evidence of Mr Chan and Mr Hall is, we consider, quite misconceived. Mr Chan was the practitioner responsible for the diagnosis of the applicant’s condition, and for the recommendation that he undergo surgery. Thus, it was Mr Chan who had firsthand knowledge of the matters that had been elicited on examination, and of the facts that were taken into account in the decision to recommend surgery. Mr Chan and Mr Hall were both qualified surgeons. The fact that the plaintiff’s claim involved criticism of the advice that Mr Chan gave to the applicant, and of Mr Hall for undertaking the surgery, did not, and could not, mean that their views as to the validity of the recommendation made to the patient should be disregarded. The judge was entitled to take into account the views expressed by Mr Chan and Mr Hall, and to give to them the weight that he saw fit.

The judge had the opportunity to view Mr Chan and Mr Hall in evidence, and to hear their evidence firsthand. In that respect, the judge noted that Mr Chan impressed him as a ‘careful and reliable witness’.[19] A reading of the transcript of Mr Chan’s evidence supports that observation by the judge. It was clear that Mr Chan did not have a strong recollection of his consultations with the applicant. He was careful not to reconstruct his account, but rather, on a number of occasions, he told the judge how he ‘would have’ advised the applicant, based on his usual practice. His evidence was relevant and admissible,[20] and the judge was entitled to take it, and the evidence of Mr Hall, into account.
[19]Reasons [29].
[20]Compare Eichsteadt v Lahrs [1960] Qd R 487; Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849, 854.

The critical question, raised by ground 2, is whether the recommendation by Mr Chan that the applicant undergo a parotidectomy was reasonable. More properly, the question is whether Mr Chan exercised reasonable care and skill in his diagnosis of the applicant and in recommending to him that he undergo that surgical procedure.

In considering that question, it is first necessary to identify the nature of the recommendation that Mr Chan made to the applicant on 12 March 2009. It is clear, from the judge’s reasons, that the judge did not accept the evidence of the applicant in relation to the manner in which the diagnosis was made, and the recommendation of surgery put to him. Rather, the judge accepted the evidence of Mr Chan. As we have noted, Mr Chan did not have a strong memory of his consultations with the applicant. When asked as to what discussion he had with the applicant on 12 March, he stated that his recommendation would have been that, because the lump was a parotid tumour, it was most likely benign, but it could be malignant, and accordingly it was not possible to know that it was not malignant. He said that he would also have mentioned his concerns about the CT scan, and, in particular, that it referred to the possibility that the lump consisted of a cystic metastasis, which meant that there was a primary cancer elsewhere, which presented itself in the parotid gland.

The question, then, is whether the judge erred in holding that Mr Chan exercised reasonable care and skill in his diagnosis of the applicant, and in giving to him the recommendation to which we have just referred. In our view, there are four points that were established by the evidence which were of central importance, both, to the diagnosis made by Mr Chan, and to the conclusion by the trial judge that that diagnosis, and the consequential recommendation to the applicant, were reasonable and appropriate.

In the first place, the evidence demonstrated clearly that the lump was in the parotid gland. Secondly, the evidence established that there were a number of factors that indicated that the lump might be malignant. Thirdly, the evidence demonstrated that there was no pre-operation test commonly available which could exclude the possibility that the lump was in fact malignant. Fourthly, the evidence of the expert medical practitioners was to the effect that if the lump was benign, there was a small risk that in time it could become malignant, and there was also a risk that it could grow and become inflamed and infected, in which case it would become quite difficult to treat and excise.

Each of those four factual points were, as we have stated, well established by the evidence. The examination by Mr Chan, and the CT scan, demonstrated that the lump was in the parotid gland. That aspect of the case was uncontroversial. In addition, at the time at which Mr Chan examined the applicant, and recommended that he undergo surgery, there were a number of factors indicating that the lump might be malignant. The evidence of each of the medical practitioners was to the effect that while most parotid lumps are benign, a small percentage of them are malignant. One of the three differential diagnoses made on the CT scan was that of a malignancy. It was that matter that gave particular concern to Mr Chan. As we have noted, Professor Serpell considered the fact that the lump had been painful in the past was a sign that the lump could be malignant. In addition, the fact that the lump was large, and that it appeared quickly, raised a concern in that respect. The fact that the CT scan reported that the lump was probably not a benign mixed tumour or a Warthin’s tumour was also considered by Professor Serpell to be relevant. Professor Sizeland was concerned that the CT report described the cyst as being rim enhancing, which meant that there was active growing tissue within it and that it had a blood supply. He considered that, of the three differential diagnoses proffered by the radiology report, that of cystic metastasis would be the most likely.

In those circumstances, in our view the evidence clearly established that Mr Chan was justified in having concerns that there was a realistic possibility that the parotid lump might be malignant. Each of the four surgeons called on behalf of the respondent — Mr Chan, Mr Hall, Professor Serpell and Professor Sizeland — stated that the only available method of determining whether or not the lump was malignant was to excise it and subject it to histopathology. Mr Long did not suggest to the contrary in his evidence.

In that respect, counsel for the applicant relied on the evidence of Dr Ellims, who examined the applicant after the operation. Dr Ellims had referred the applicant for a PET scan, which excluded the possibility that the applicant had a low grade malignant lymphoma. In evidence, Dr Ellims stated that the PET scan is ‘highly specific’ for malignancy. When asked (by the judge) whether a PET scan would have enabled the surgeons to exclude the possibility of malignancy in 2009, Dr Ellims responded that the surgeons could have had a PET scan undertaken at the Austin Hospital, but that a negative PET scan that was obtained in 2011 ‘was almost completely confirmatory’ that there was no malignant tumour.

The difficulty with Dr Ellims’ evidence is that it was in short compass, and it is not entirely clear whether it was specifically directed to the question asked of him, namely, whether a PET scan in 2009 would have excluded a malignancy in the parotid lump. To the extent that Dr Ellims did address that question in his evidence, he stated that the scan in 2011 was ‘almost completely’ confirmatory that there was no malignant tumour. Thus, Dr Ellims’ evidence was not to the effect contended for by the applicant, namely, that such a scan could have excluded the possibility that the parotid lump was malignant.

In the course of evidence given by Mr Chan, the judge asked whether the applicant could have been referred to an oncologist or have undergone a PET scan if Mr Chan thought that the lump was a cystic metastasis. In response, Mr Chan stated that such a course of action was not standard practice. He said that if there was a lump which could be cancerous, the proper treatment was to remove it and get a definitive diagnosis.

Thus, the evidence of all of the surgeons who gave evidence, including Mr Long, was to the effect that there could be no definitive diagnosis of the nature of the lump, unless it was first excised. There was nothing in the applicant’s particular circumstances, including his medical history, that detracted from the probative value of that evidence. Nor when properly considered, does Dr Ellims’ evidence undermine the force of that evidence. In those circumstances, the judge was correct in stating, in his reasons, that the ‘overwhelming medical opinion’ was that the lump needed to be surgically removed to enable a full diagnosis to be made, and for the possibility of malignancy to be excluded by full pathological examination.[21] That finding by the judge was well supported by the evidence.
[21]Reasons [69].

Further, the evidence established that if the lump was left in situ, and not removed, in light of the young age of the applicant, there was a risk that in the course of time it could become malignant, and there was also a risk that it could become infected and inflamed, in which case it could be difficult to remove. Mr Long regarded the risk of a Warthin’s tumour becoming malignant was ‘very slight’. Mr Serpell agreed that such a risk was less than one percent. However, Mr Long agreed that in time Warthin’s tumours can tend to grow larger and become inflamed, infected and painful. He also agreed that conservative treatment of a parotid lump is generally not recommended for young patients. Professor Serpell stated that over time all parotid tumours, including Warthin’s tumours, get bigger. He stated that they can become quite disfiguring, large, and uncomfortable. Professor Sizeland gave evidence to similar effect, and, in particular, he stated that with a younger patient it is important to remove the lump, because it would have a number of years over which to manifest a malignancy.

In summary, the evidence established that the lump was in the parotid gland, and that, as such, there was a risk that it would be malignant. Secondly, the evidence established that there were a number of indications, in the case of the applicant, that the lump might be malignant. Thirdly, the judge was justified in finding that there was no available test by which a malignant tumour could be excluded, other than by excising the tumour and subjecting it to histopathology. Fourthly, the evidence established that, even if the tumour was then benign, there was a risk that it could become malignant, or otherwise cause problems to the applicant, particularly in light of the fact that he was then young.

In those circumstances, it is not surprising that, as the judge found, the overwhelming weight of medical opinion in the case was that the only appropriate method of treating the lump, that was detected in the applicant’s neck, was to excise it and have it examined by a pathologist. The evidence of Mr Chan, Mr Hall, Professor Serpell and Professor Sizeland was each to that effect. The only dissenting opinion was that of Mr Long, who, as the judge noted, in effect suggested a ‘wait and see’ approach. As the judge observed, in his first reports, when Mr Long recommended that approach, he did not have available the CT scan. On the other hand, the judge had the evidence of Professor Serpell, who indicated that that course of action was not appropriate. Professor Serpell stated:

I totally agree that I would have recommended surgery. I agree with the recommendation that was given. I guess looking at it from the alternative perspective, to not recommend surgery you had a 36 year old man with a large undiagnosed lump in the parotid with concerning clinical and radiological features. I think he would have been a brave surgeon to not remove it and even if you didn’t the question is, well, what are you going to do? Re-image it, re-biopsy it for the next x number of years?
Is that a reasonable course? … No, I don’t believe so. I think it is inappropriate and unnecessary when it is safe and reasonable to undertake parotidectomy.

As we have earlier stated, it is for the Court, and not for expert medical witnesses, to determine whether in the circumstances of a case a medical practitioner has exercised reasonable care and skill. However, in the area of diagnosis and treatment, the Court does place weight on the evidence of medical practitioners, who have experience in the field of expertise that is practised by the defendant. The views of each of Mr Chan, Mr Hall, Mr Serpell and Mr Sizeland were based on the facts established by the evidence and to which we have referred. In particular, each of them stated that in the case of a parotid lump, and in particular in the case of a lump in a young patient who presented with the features of the applicant’s lump, it was standard practice of experienced medical practitioners to recommend that the lump be excised. That evidence was of weight, and the applicant has not been able to establish that there was any error by the judge in accepting that evidence, and relying on it. For those reasons, the applicant has not made out grounds 2 and 3 of the application for leave to appeal.

Ground 5: whether the trial was unfair

In support of ground 5, counsel for the applicant submitted that the trial of the proceeding was unfair, because the trial judge failed to provide to the applicant the proper scope of assistance that the law requires to be provided to a self-represented litigant.

Counsel acknowledged that the trial judge did provide substantial assistance to the applicant both before the trial, and during the trial. However, he submitted that the trial judge failed to provide appropriate assistance to the applicant in six specific respects, namely:

(1)The judge failed to explain to the applicant the nature of the case that he had pleaded, and in particular, the case based on a failure of the respondent to warn him of the risks of the proposed surgery.
(2)The judge failed to give adequate advice to the applicant concerning the application by the respondent to rely on additional reports of Professor Serpell and Professor Sizeland.
(3)The judge did not allow an adjournment longer than two hours to permit Mr Long to consider a large amount of medical literature that was put to him in cross-examination.
(4)The judge failed to advise the applicant as to his rights to call for the pamphlet referred to by Professor Serpell and by Professor Sizeland, relating to the risks of parotidectomy.
(5)The judge failed to convene a conference of the experts to enable them to produce a joint report.
(6)The judge questioned a number of the witnesses in a manner which rendered the trial unfair to the applicant. In that respect, counsel for the applicant referred to questions put by the judge to Mr Long, Dr Ellims, Professor Fox, Dr Andrianakis, Mr Chan, Mr Hall, Professor Serpell and Professor Sizeland.

In response, counsel for the respondent submitted that the judge was well aware of his obligations to the applicant as an unrepresented litigant, and that he provided ample assistance to the applicant in the course of the trial. He submitted that the judge assisted the applicant significantly in his evidence in chief, and in adducing evidence from his witnesses, and in particular Mr Long. The judge asked appropriate questions of the respondent’s experts, and in doing so he put to them the principal propositions which appeared to be relied on by the applicant in support of his case. He submitted in that way the judge relieved the applicant of the obligation to put his case to witnesses as he was obliged to do.

Counsel for the respondent also contended that the judge gave adequate advice to the applicant concerning his rights arising out of the late service of the additional reports of Professor Serpell and Professor Sizeland. He contended that it was not for the judge to call for the pamphlet referred to by Professor Serpell and Professor Sizeland, and, in particular, such a call might have resulted in the production of evidence that was unfavourable to the applicant’s case.

Legal principles

The principles, governing the duties of a judge to ensure a fair trial for an unrepresented party, have been discussed in a number of authorities,[22] and they do not require elaborate exposition for the purposes of determining this application. Essentially, the duty of the judge to provide adequate assistance to an unrepresented litigant is an aspect of the obligation of the judge to ensure that the trial is fair.[23] For that purpose, the judge is required to provide advice and assistance to a litigant in person in order to diminish, so far as possible, the disadvantage that that litigant would ordinarily suffer when opposed to a trained lawyer on the other side, and in order to ensure that the unrepresented litigant does not become an unwitting victim of pitfalls that the adversarial system can present to those who are uneducated in the law.[24] Accordingly, the judge is required to give to the unrepresented litigant sufficient advice on matters of practice and procedure to avoid that litigant from suffering such a disadvantage.[25]
[22]See Rajski v Scitec Corporation Pty Ltd (Unreported, NSWCA, Samuels JA, 16 June 1986) (‘Rajski’); Minogue v HREOC (1999) 84 FCR 438, 445–446 [26]–[29] (‘Minogue’); Downes v Maxwell (2014) 313 ALR 383, 389–390 [22]–[29] (Osborn JA); Trkulja v Markovic [2015] VSCA 298, [32]–[45] (‘Trkulja’); Zhong v Melbourne Health & Anor [2015] VSCA 165, [66]–[68].
[23]Hamod v New South Wales [2011] NSWCA 375, [309] (Hamod).
[24]Rajski, 27; Hamod, [309].
[25]Trkulja, [39].

On the other hand, it is important that a judge, while providing assistance and advice to the unrepresented litigant, does not become an advocate in that litigant’s cause.[26] As this Court recently observed in Trkulja, in determining the scope of assistance to be offered to a self-represented litigant, ‘the touchstones are fairness and balance’.[27] The Court further stated:

It is clear that a judge cannot become the advocate of the self-represented litigant. This is because the role of a judge is fundamentally different to that of an advocate. Further, a judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. Accordingly, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one litigant is self-represented.[28]
[26]Minogue, 446 [29].
[27]Trkulja, [39].
[28]Trkulja, [41].

Analysis

The question raised by ground 5 is whether the judge failed to comply with his obligation to the applicant as an unrepresented litigant in any of the six respects contended by his counsel.

In our view, there is no substance to the first matter raised by counsel, namely, that in explaining to the applicant the nature of the case that had been pleaded on his behalf, the judge failed to advise him that part of his case consisted of an allegation that the respondent had failed to warn him of the risks associated with a parotidectomy.

The passages of the transcript, relied on by counsel for the applicant, related to discussions that occurred when the applicant sought to make an allegation in the trial that Mr Hall had used clips in the course of the surgery. After the applicant raised that matter at trial, the judge explained to him that that allegation was not part of the claim that had been pleaded on his behalf. In order to assist the applicant to understand that point, the judge explained to the applicant the relevant part of his case that had been pleaded, namely, the case relating to the recommendation that he undergo the surgery and the manner in which it was carried out. In assisting the applicant in that way, the judge did not profess to be giving to the applicant a complete resume of the claim pleaded on his behalf. The part of the pleading, relating to the failure of the respondent to warn the applicant of the risks of surgery, was not relevant to the point that had arisen.

Further, and in any event, it is clear that the applicant well knew that part of the claim that he was asserting against the respondent consisted of an allegation that the respondent had failed to warn him of the risks associated with a parotidectomy. In his evidence in chief, when describing the circumstances in which the medical practitioners advised him to undertake surgery, without any prompting, he told the judge of the two risks, which he alleged he was warned about, namely, the possibility of sweating on the side of the face after surgery while eating, and the fact that with some old people there is an unimportant nerve which needs to be cut but that would not happen to him. The issues relating to the warnings given to the applicant, and the adequacy of those warnings, were explored with Mr Long, with Mr Chan, and with the respondent’s experts. It was clear throughout that the applicant well understood that that was part of the claim that he was making against the respondent.

Similarly, we consider that there is no substance to the point made by counsel for the applicant relating to the further reports of Professor Sizeland and Professor Serpell that the judge permitted to be tendered as part of their evidence in chief.

Mr Serpell’s first additional report comprised four lines, which stated that he had read the reports of Mr Long, and they did not cause him to alter his opinion. The second additional report comprised notes of a telephone conference between Professor Serpell and the respondent’s legal representatives. It consisted of five short paragraphs. The additional report of Professor Sizeland consisted of notes of a telephone conference between Professor Sizeland and the respondent’s legal representatives. It contained seven short paragraphs.

On the second day of the trial, counsel for the respondent sought leave to have the additional reports of Professor Serpell included in the Court Book. The judge advised the applicant of the requirement that ordinarily those reports should be provided by way of an Order 44 statement before the case commences. He informed the applicant as to the substance of the two reports that the respondent sought to rely on, and asked if he had any objection to the material being added to the Court Book. The applicant responded that he did not have any such objection, but he would be a bit concerned if he had to talk about those matters on the same day. In fact, Mr Long did not give evidence for a further two days, which was the first occasion on which the further reports might have been relevant.

In those circumstances, we consider that the judge gave adequate explanation to the applicant as to his rights in relation to the further reports. While the explanation was given in short form, nevertheless it was sufficient to assist the applicant to understand that he had a right to object to the admission of those documents into the Court material, because they were not in the form required by the rules, and because they had not been served before trial. In addition, the appellant’s response to the judge’s remarks demonstrated that the judge’s explanation to the appellant was sufficient to enable him to identify any prejudice he might suffer as a result of the admission of the further material.

Further, the additional reports of Professor Serpell, and the additional report of Professor Sizeland, in substance amounted to no more than an elaboration by them of matters that were the subject of their earlier reports. In the circumstances, it would have been somewhat artificial for the judge not to have permitted the respondent to rely on the contents of those reports. When each of the two medical experts gave viva voce evidence, it was highly likely that the matters referred to in those additional reports would become the subject of their evidence, whether in evidence in chief, or in response to questions in cross-examination. In that respect, this case is quite different, and distinct, from the circumstances in Thomas v Power Cor Australia Ltd,[29] in which J Forrest J excluded an expert report that was not served in accordance with the rules.
[29][2011] VSC 391.

The third aspect of the trial, relied on by the applicant, related to the use by counsel for the respondent of a large amount of medical literature when cross-examining Mr Long. That literature had been attached to the report of Professor Sizeland. It emerged that Mr Long had not had the opportunity to read the literature. Accordingly, the judge stood the matter down to give Mr Long the opportunity to read it. When the case resumed, Mr Long acknowledged that he had had an opportunity to look through the material. Subsequently, counsel for the respondent cross-examined Mr Long about some of the material. It is clear from the answers that Mr Long gave that he was not under any disadvantage, in answering those questions, by reason of the fact that he had only recently had the opportunity to read the material. Accordingly, there is no substance to the point raised on behalf of the applicant.

In the course of the evidence given by Professor Serpell and Professor Sizeland, the judge asked both witnesses whether they provided to their patients a written list of the risks associated with parotidectomy. Both doctors stated that they did so in the form of a pamphlet that noted those risks. It is now contended that the judge should have called for those pamphlets to be produced. However, it was not for the judge to call upon the witnesses to produce the pamphlets. If he did so, he would thereby have been entering the arena. Accordingly, the judge did not fail to comply with his duty to the applicant by not making such a call.

Similarly, and contrary to the submissions on behalf of the applicant, the duties of the judge to the applicant as an unrepresented litigant did not require the judge, of his own motion, to convene a meeting of the experts for the purposes of producing a combined report. In light of the defined battleground in the litigation, such a process was both unnecessary, and in all likelihood would have been unproductive. Professor Serpell and Professor Sizeland each had had the opportunity to read Mr Long’s report, and they specifically had not been moved to alter their views having done so.

The final issue raised by the applicant, relating to the conduct by the judge, concerned the questioning of medical witnesses, by the judge in the course of the trial.

As already noted, counsel for the applicant commenced by acknowledging that both before and during the trial the judge provided ‘substantial assistance’ to the applicant. That concession, by counsel, was entirely justified.

Two months before the trial, a preliminary hearing took place before a judge who was not the judge who heard the trial. The purpose of that hearing, it appears, was to enable that judge to give to the applicant full advice as to how he might present his case. For that purpose, the judge provided to the applicant a written document, which he explained to the applicant in detail. The judge explained to the applicant legal matters such as the burden of proof, the duty of care of a medical practitioner, and damages. He explained to the applicant the manner in which witnesses are called to give evidence. He told the applicant that he could give evidence himself about the advice that he had been given, including the warnings that had been given to him about the surgery that he was to undertake. He also told the applicant that while he could not proffer opinions, he was entitled to call medical practitioners to give expert evidence on his behalf. He also endeavoured to explain the hearsay principle to the applicant. He told the applicant how he might bring witnesses to court by issuing a subpoena. He told the applicant that he did not have to call witnesses whose evidence might not assist his case. In that respect, the judge discussed with the applicant the witnesses who he might wish to call, and how he might go about having them give evidence in court. The advice given by that judge to the applicant was thorough, clear, and comprehensive.

As already mentioned, at the commencement of the trial, an issue arose concerning the allegation by the applicant that the surgeon had used clips, in circumstances in which the applicant had asked that they not be used. The judge gave to the applicant a clear explanation as to why he could not make that allegation, because it was not pleaded, and because, at an early hearing, an application by the applicant to make the allegation had been rejected by another judge.

The applicant then gave evidence. For that purpose, the judge asked the applicant relevant and sequential questions to assist the applicant to give his account of all the matters that were relevant to his case. The applicant’s evidence in chief was contained in 100 pages of transcript. Throughout that process, the judge gave significant assistance to the applicant. As a consequence of that assistance, the applicant was able to give evidence as to all of the matters that were relevant to his claim.

The applicant then called four medical practitioners to give evidence on his behalf, Mr Long, Dr Ellims, Professor Fox and Dr Andrianakis. At the commencement of Mr Long’s evidence, the judge explained to the applicant his right to direct questions to the doctor that he thought were relevant to the case. His Honour suggested to the applicant that he (the judge) might first ask Mr Long questions to elicit the evidence that was relevant to his case, and that if he missed anything, the applicant would have an opportunity to ask further questions. He asked the applicant if he was content with that course, and the applicant replied in the affirmative.

The judge then proceeded to ask Mr Long questions in order to elicit his evidence in chief. The questions asked by the judge were relevant, and he took the witness to the salient features of the case. At the conclusion of that process, the judge told the applicant that Mr Long’s reports would be received in evidence, and he asked the applicant if he wished to ask any questions of Mr Long. The applicant then asked Mr Long whether he considered the operation was necessary. The judge then assisted the applicant to ask Mr Long further questions about the utility of the ultrasound report. After the judge asked some more questions of Mr Long, he again asked the applicant if he wished to ask further questions.

A similar process was adopted by the judge for the evidence of Dr Ellims, Professor Fox and Dr Andrianakis. In the case of each of those witnesses, their evidence was elicited by relevant and appropriate questions asked of them by the judge.

It is clear that, by the process adopted by the judge, the applicant was given significant assistance in the presentation of his case. The assistance so given by the judge to the applicant, in large measure, offset the disadvantage of the applicant as a self-represented litigant lacking in any legal training. In that context, it is somewhat surprising that the complaint made on this application, of the conduct of the judge at the trial, extended to the questioning by the judge of his four medical witnesses. Having read the transcript of that questioning carefully, there was nothing unfair in that questioning at all. To the contrary, as we have noted, the manner in which the judge took each of the four medical witnesses through their evidence was of substantial assistance to the applicant in the presentation of his case.

In oral submissions on this application, the principal focus of counsel for the applicant, on this aspect of the case, concerned the questioning by the judge of each of the medical practitioners called on behalf of the respondent.

At the conclusion of the evidence of each of those witnesses, the judge explained to the applicant that he would give him the opportunity to ask questions in cross-examination, but that it might be of assistance to the applicant if he (the judge) first asked some questions of the witness. He asked the applicant if he was satisfied with that course, to which the applicant replied in the affirmative. The judge then proceeded to ask the witness questions. At the conclusion of that process, the judge offered the applicant the opportunity also to ask questions of the witness. In response to that invitation, the applicant asked each witness some questions.

In the written case filed in support of the application for leave to appeal, it was contended that the whole of the questioning by the judge, of each of those four witnesses, made the trial unfair to the applicant. In oral submissions, it was submitted that the questioning was unfair because it ‘put the case on a particular path’ that the applicant, as an unskilled litigant, could not deal with. By way of example, counsel referred to questions asked by the judge of Mr Chan as to whether there was any indication in his notes that he might have recommended, as a possible course of action, that the lump be left in site and observed. It was submitted that, in some way, that question, and the answer given to it by Mr Chan, put the case in a manner which was difficult to deal with. In our view, that submission is misconceived. In fact, by those questions the judge explored with the witness whether he had given consideration to the course of action advocated by Mr Long in his evidence, namely, to adopt a ‘wait and see’ approach. If the judge had not put that question to Mr Chan, then it should have been put to the witness by the applicant. In view of the circumstance that the applicant was unrepresented, the judge thus put a question on behalf of the applicant that it was necessary for the applicant to have asked.

Counsel for the applicant also submitted that a number of the questions asked by the judge of witnesses were leading, and that they contained assumptions that assisted the case of the respondent. In support of that proposition, he referred to a question asked by the judge of Mr Chan, as to whether it was normal practice to explain the reason why the surgery was performed, and to tell the patient exactly what the surgery involved, including explaining the risks involved in the surgery. Mr Chan answered that that was normal practice ‘to some degree’ because he might not necessarily be the surgeon who was allocated to the case. In our view, the question was not unnecessarily leading, and, indeed, that is borne out by the answer given by the witness to it.

Having reviewed the questioning by the judge of each of the medical practitioners called on behalf of the respondent, in our view the judge asked those practitioners relevant and important questions. It was not the task of the judge to cross-examine those witnesses. If he had proceeded to do so, the judge would have failed to comply with the principle that he should not adopt a partisan role while endeavouring to assist the applicant to present his case. Rather, in questioning each of the witnesses, the judge ensured that they had the opportunity to respond to matters which had been raised by the applicant’s witnesses.

There was a suggestion by counsel for the applicant that the questions asked by the judge of the witnesses were unduly favourable to the respondent’s case. However, there were a number of instances in which the judge asked questions that could not be characterised in that way. In particular, the question asked by the judge of Mr Chan, as to whether it was possible to make a recommendation to the patient that he adopt a ‘wait and see’ approach, and to which we have referred, was potentially of assistance to the applicant in his case. Similarly, the questions asked by the judge of Mr Chan as to whether he should have referred the applicant to an oncologist or to undergo a PET scan, instead of proceeding to surgery, could only have been of assistance to the applicant. Taking those matters into account, we do not consider that the questions asked by the judge of the medical witnesses called for the respondent were inappropriate, or unfair.

Our review of the transcript of the trial reveals that the judge gave to the applicant substantial assistance in the presentation of his case, and in the questioning of witnesses called on behalf of the respondent. Contrary to the submissions made by the applicant, we consider that the judge fully complied with his obligation to provide assistance and advice to the applicant as to his rights, and to ensure that the applicant was afforded a fair trial of his claim. For those reasons, the applicant does not succeed on ground 5 of the application.

Conclusion

For the foregoing reasons, the applicant has failed to make out grounds 2, 3 and 5 on which he relies. As earlier mentioned, he abandoned reliance on grounds 1 and 4.

Accordingly, we would grant the application for leave to appeal on grounds 2, 3 and 5, but dismiss the appeal.

[2016] VSCA 251

19 October 2016