Rufo v Hosking - [2004] NSWCA 391

No judgment structure available for this case.

Reported Decision:
61 NSWLR 678

Court of Appeal

CITATION: Rufo v Hosking [2004] NSWCA 391

HEARING DATE(S): 20 May 2004

JUDGMENT DATE:
1 November 2004

JUDGMENT OF: Hodgson JA at 1; Santow JA at 14; Campbell AJA at 56

DECISION: Appeal allowed with costs.

CATCHWORDS: TORT - Medical negligence - recoverability for loss of a less than 50% chance of avoiding spinal microfractures suffered in course of heavy-dosage treatment with corticosteroids against Lupus - breaches of duty of care by specialist paediatrician in substituting one corticosteroid for another so causing a heavier than the appropriate dosage and in failing to introduce a steroid sparer at the appropriate stage - more probable than not that even without these breaches microfractures would have occurred but appellant still lost a material chance that but for the negligence the fractures would not have occurred, or would not have occurred at the time or with their severity - comparison of all or nothing approach in causation and damages - causation issues - inapplicability to this situation of UK Fairchild approach to causation - relevance of expert evidence - difficulty of quantifying the lost chance - chance must be material and not speculative - relevance of possible pre-existing celiac condition in contributing to susceptibility to fractures and questions of evidentiary onus - observations on permissibility of loss of chance approach in medical negligence cases.

CASES CITED: Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bonnington Castings Ltd v Wardlow [1956] AC 613
Chaplin v Hicks [1911] 2 KB 786
Chappel v Hart (1998) 195 CLR 232
Commonwealth v McLean (1996) 41 NSWLR 389
Daniels v. Anderson (1995) 37 NSWLR 438
Diamond v Simpson (No 3) [2003] NSWCA 373
E.M. Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Gavalas v Singh [2001] 3 VR 404
Gregg v Scott [2002] EWCA civ 1471
Hotson v. East Berkshire Area Health Authority [1987] AC 750
Jorgenson v Vener, 616 NW2d 366 (SD SC, 2000)
Laferrière v Lawson [1991] 1 SCR 541
Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR
McGhee v National Coal Board [1973] 1 W.L.R. 1
Millett v McMonagle [1970] AC 166 (HL)
Naxakis v. Western General Hospital (1999) 197 CLR 269
Purkess v Crittenden (1965) 114 CLR 164
Roberts v Ohio Permanente Med Group, Inc, 668 NE 2d 480 (Ohio SC, 1996)
Rogers v Whitaker (1992) 175 CLR 479
Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty. Ltd. v. McGuiness (2000) 49 NSWLR 262
Shorey v PT Ltd (2003) 77 ALJR 1104
Sutherland Shire Council v Heyman (1984-5) 157 CLR 424
TC v The State of New South Wales & Ors [2001] NSWCA 380
The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Tran v Lam NSWSC, 9 February 1995, unreported BC 9504451
Wallaby Grip (Bae) Pty Limited (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355
Watts v Rake (1960) 108 CLR 158
Watts v Rake and Shorey v PT Ltd (2003) 77 ALJR 1104
Wilsher v Essex Area Health Authority [1988] AC 1074

PARTIES :
Michelle RUFO (Appellant)
Dr C S HOSKING (Respondent)

FILE NUMBER(S): CA 40125/03

COUNSEL: P BRERETON, SC/ DR K SANT (Appellant)
D HIGGS, QC/ J LONERGAN (Respondent)

SOLICITORS: Kells the Lawyers (Appellant)
Ebsworth & Ebsworth (Respondent)

LOWER COURTJURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20468/01

LOWER COURT
JUDICIAL OFFICER : Studdert J

- 119 -

CA 40125/03
SC 9475/98

HODGSON JA
SANTOW JA
M W CAMPBELL AJA
1 NOVEMBER 2004

Michelle RUFO v Dr C S HOSKING

Judgment

1 HODGSON JA: I agree with the orders proposed by Campbell AJA, and subject to what I say below, substantially with his reasons.

2 I agree that the primary judge did not err in not being satisfied, on the balance of probabilities, that the breaches of duty by the respondent, which he found to have occurred, caused the fractures suffered by the appellant. Even when one takes into account the principles relied on by Mr. Brereton, it was well open to the primary judge not to be satisfied that, but for the negligence, the fractures would not have occurred; or that the negligence materially contributed to the occurrence of the fractures; or that the fractures were the realisation of a risk created by the negligence.

3 However, I also agree that the evidence strongly supported a conclusion that the negligence materially increased a risk, which was otherwise very substantial, that fractures would occur; and that the occurrence of the fractures was a realisation of this total risk (as distinct from the increment to the risk created by the negligence). This gives rise to the question whether the appellant is entitled to be compensated for the loss of the chance that, but for the negligence, the fractures would not have occurred (or would not have occurred at the time or with the severity of their actual occurrence). If so, then in my opinion it was an error for the primary judge to hold that the increased risk was too speculative to justify an award of damages: so long as such an increase is material, I think the Court is required to do its best to assess it.

4 It is clear that a plaintiff cannot recover damages for negligence unless it is proved, on the balance of probabilities that some actual quantifiable loss occurred as a result of the negligence. However, it is also clear that, at least in some circumstances, the loss of a chance of commercial value is regarded as an actual quantifiable loss: Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 at 355.

5 There is a real question whether the loss of a chance approach is applicable in medical negligence cases, where an adverse result is suffered, for which there was a substantial probability even without negligence, but negligence has materially increased that probability.

6 The approach was not applied by the House of Lords in Hotson v. East Berkshire Area Health Authority [1987] AC 750; but the approach adopted by the House of Lords in that case, of treating as certainty a 75% chance that the plaintiff would have suffered the disabling disease even without negligence, was considered by Clarke JA and Sheller JA in Daniels v. Anderson (1995) 37 NSWLR 438 at 527 as having been rejected by the High Court in Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 at 642-3.

7 In Naxakis v. Western General Hospital (1999) 197 CLR 269, Gaudron J considered the question at 277-281; and she rejected the view that, in a case such as that one, a plaintiff could recover damages on the basis that what had been lost was the chance of successful treatment. However, Callinan J at 313-4 considered that the loss of a chance that was real and of some substance, even though less than 50%, would attract damages. Gleeson CJ at 272 noted that the question had not been considered by the trial judge or the Court of Appeal, and had not been fully argued; and he expressed no opinion.

8 The question was not considered in Seltsam Pty. Ltd. v. McGuiness (2000) 49 NSWLR 262, where Spigelman CJ discussed the use of statistics given by epidemiological studies.

9 It seems clear that, if avoidance of the loss in question would have depended upon the plaintiff taking a particular course of action, the plaintiff must prove on the balance of probabilities that, but for the negligence, the plaintiff would have taken that course of action. The plaintiff cannot be compensated for the loss of a chance that the plaintiff might have done so: Sellars at 353. However, otherwise I think it is consistent with the principles established in Malec and Sellars to say that it is enough if the plaintiff proves, on the balance of probabilities, that he or she has been deprived of a valuable chance.

10 That chance must be inherent in the circumstances, not merely an artefact of the way evidence is presented in the case. Thus, if it appears to be a plain fact as to whether treatment would or would not have been successful, and the element of uncertainty arises merely from different expert views, then the plaintiff will not be compensated for the chance that one expert might be correct. On the other hand, if it appears that the very best medical science can do is to say that the treatment had a quantifiable chance of success, then in my opinion that can be treated as a valuable chance for the loss of which a plaintiff can be compensated. As with other questions concerning causation, a common sense approach should be taken to the question of whether a valuable chance has been lost, or whether the situation is rather one where one or other alternative would definitely have occurred, and the only uncertainty is due to imperfections in the evidence.

11 Gaudron J in Naxakis at 279-80 suggested that this approach would disadvantage plaintiffs in circumstances where the chance of successful treatment is more than 50%. If this was so, it would not in my opinion involve injustice. In any event, I doubt if it is so. Even if the occurrence of the adverse result is treated as being certainly caused by the negligence, a substantial chance that the adverse result could have resulted in any event cannot, on the Malec approach, be ignored, at least if the chance relates to the adverse result occurring at some time different from the time when it actually occurred. Further, it would be curious if the Malec approach were entirely precluded if the substantial chance related to an occurrence of the adverse result at the same time as its actual occurrence, though not precluded if it related to the occurrence of the result at some slightly later time.

12 In my opinion, the evidence in this case strongly supports the view that medical science can do no more than assert that there was a very substantial risk of the adverse result, that this risk was materially increased by the negligence, and that the adverse result was the realisation of the totality of the risk; and provide some basis for quantifying the chance that the adverse result would have been avoided if the negligence had not occurred. Accordingly, in my opinion this is a case that can be approached as one involving a loss of a valuable chance.

13 Consistently with what was said previously, this chance was less than 50%. For my part, I may have been prepared to make an assessment of the chance on the basis of the material before this Court; but both sides are in agreement that this should be undertaken by the trial judge. Accordingly, I agree with the orders proposed by Campbell AJA.

14 SANTOW JA:

INTRODUCTION

15 A principal feature of this case is that the trial judge, Studdert J, concluded that, while the respondent doctor breached his duty of care in two respects, because those breaches on balance of probabilities did not cause or materially contribute to the fracture injury to the appellant’s spine, the appellant could not succeed. The appellant challenges that result. The appellant submits that she was entitled to be compensated for loss of a chance that, but for the negligence, the microfractures either would not have occurred, or would not have occurred at the time or with the severity of their actual occurrence. This is on the basis that any chance involved, though material, was below 50%.

16 There is no challenge to the first breach of the respondent’s duty of care to the appellant, in substituting one corticosteroid for another (dexamethasone for prednisolone). This had the effect of increasing the steroid dosage level, when expressed in equivalent terms. There is however a challenge to the second breach found. That breach was by reason of not introducing the “steroid sparer” Imuran to the appellant’s treatment regime at an appropriate stage. I agree with M W Campbell AJA that the Notice of Contention challenging that finding should not succeed and do not need to add to his reasons on that.

Disposition of Appeal

17 An important question of principle underlying this case, though not itself in dispute but rather whether the facts support its application, can be stated as follows. Should medical negligence cases allow a remedy to the plaintiff whose injury, more likely than not, would have occurred without any negligence on the part of the doctor, but where that negligence nonetheless denied the plaintiff a material chance of a better outcome? To-day, opinion has decisively shifted against the simplistic approach of saying that loss in terms of compensable legal liability should depend on which party can best insure against it. Unprincipled extension of medical liability threatens to reach a point where the cost of medical indemnity insurance will become too heavy for the doctor to bear or the community to absorb in higher charges.

18 That dictates a high degree of caution in recognising any compensable liability for loss of chance. That is more especially as the High Court has yet to lay down definitively that loss of less than a 50% chance for a better medical outcome is indeed compensable. That said, there are now dicta in both directions on that subject (Naxakis v Western General Hospital (1999) 197 CLR 269). Moreover, the High Court’s reasoning is available from analogous contexts, in particular contract (such as Sellars v Adelaide Petroleum NL (1994) 79 CLR 332). Also in damages generally; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. There have been a number of decisions in Australia both at intermediate appellate level and below favouring recovery in medical negligence cases. The trend so far has been the other way in Canada; Laferrière v Lawson [1991] 1 SCR 541. But in the United States the Courts’ response has on the whole been more favourable, though not uniformly so; see for example Roberts v Ohio Permanente Med Group, Inc, 668 NE 2d 480 (Ohio SC, 1996); Jorgenson v Vener, 616 NW2d 366 (SD SC, 2000).

19 Courts in the United Kingdom have so far decided against loss of chance liability in medical negligence cases. The current House of Lords appeal from Gregg v Scott [2002] EWCA civ 1471 affords opportunity to reassess this difficult area. Hotson v East Berkshire Health Authority [1987] AC 750 denying compensation for loss of a chance appears to stand in the way. This is unless it be distinguishable, on the basis that, as Mance LJ explained in the Court of Appeal, Hotson was dealing with a past historic fact, not one in prospect. It was moreover a case where the adverse consequence of that past fact was inevitable (vascular necrosis from rupture of the blood vessels); with the result that negligent failure to diagnose in time a traumatic fracture of the femur had no causal effect on the necrosis.

20 Particularly influential in terms of principle has been the distinction drawn by Lord Diplock in the well-known passage in Millett v McMonagle [1970] AC 166 (HL) at 176:

“The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards”

21 While approved by Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 the High Court added an important refinement, namely to include past events of a hypothetical character in the “what would have been” category where loss of chance or prospect hold sway.

22 This renders those past events, being of a hypothetical character, amenable to compensation on a lost chance basis though that chance be less than even, provided that the duty of care extend so far. Here we are dealing with the duty of a doctor to do what reasonable skill and judgment require. That must ordinarily be directed to achieving the best possible medical outcome, and thus to eliminating or reducing so far as practicable, the risk of things going wrong. That said I need to emphasise that doctors are not and cannot be, guarantors of outcomes. What their duty encompasses is reasonable care and skill, directed to that end. But the duty of care in other spheres may be quite different. It may in no way lend itself to such an outcome approach judged by reference to the exercise of reasonable care and skill in eliminating or reducing risks. For example one would judge the liability of a local council to the buyers of houses quite differently, where such notions of liability would not comport with the limited duty of care applicable; compare Sutherland Shire Council v Heyman (1984-5) 157 CLR 424.

23 The question, why should there be recovery for loss of a chance when less than even, turns on the nature of the duty of care imposed on the medical practitioner. It is a continuum, starting with diagnosis and the duty to advise the patient as to his or her treatment and then embracing the mode of treatment itself. Bringing to bear reasonable care and skill in advice as to risks is in order that patient consent is then informed by knowledge of the material risks of the treatment options advised. That duty operates in a context where the patient needs to make an informed decision as to the anticipated outcome. Then when it comes to managing the treatment, here that of a drug dosage regime, again reasonable care and skill is brought to bear directed to a successful outcome by maximising the chances of its achievement. This is necessarily within the scope of the patient’s own informed decision about agreed treatment as well as its practical availability. We may know for example in hip replacements that a titanium hip offers a better outcome than a steel one. But cost considerations may render it practically unavailable.

24 That decision on treatment, as was the case here, may well need to be revisited where the treatment is not simply an operation, but a course of medication over a period, where competing risks have to be gauged. That is here the risk of failing to deal adequately with the Lupus as against the risk of side effects, depending on the drugs used and the dosage levels. Symptoms over time may emerge dictating adjustment to the course of medication. At the outset not all of the individual patient’s reactions to the treatment may be ascertainable or even capable of reliable prediction. The doctor is therefore reasonably to be expected to keep such a course of action under review, monitoring actively its foreseeable risks, These here included the risk of microfractures from high dosage of corticosteroids, as eventuated. Moreover, each individual may react differently to the treatment. Here, for example, there was the possibility of an earlier celiac condition affecting the propensity of the bones to fracture, though there is no evidence that the doctor was aware of it at the time. All of these matters go to bringing to bear reasonable care and skill, here that of an ordinary skilled specialist paediatrician, to the task of achieving the best chance of a successful medical outcome. Given that is the purpose of medical treatment, why should not loss of a chance in achieving that end be recoverable, where treatment falls short of that standard of reasonable care and skill? It is simply the analogue of advising earlier about the prospect of risk in achieving such an outcome.

25 Professor Luntz in a penetrating article “Loss of Chance” in Causation in Law and Medicine edited by Ian Freckelton and Danuta Mendelson (1992) at 183 put the issue of principle in these somewhat stark terms:

“Say that a plaintiff has a less than 50% chance of not having a leg amputated if a surgeon takes reasonable care in treating it. The surgeon fails to take care and the patient loses the leg … one might infer that the surgeon’s negligence deprived the patient of the chance of saving the leg, but one could not infer that it caused the loss of a leg, since more probably than not that would have happened even if the surgeon had not been negligent. The plaintiff should be entitled to damages for that loss. Otherwise, according to those that believe that the law of torts operates as a significant deterrent, medical practitioners can be as negligent as they like when treating seriously ill patients who have less than a 50% chance of survival, since the doctors would never be liable if the patient did not survive.”

26 Unless the duty of care can be invoked where negligence has reduced the chance of a successful outcome, though that chance be less than even, that indeed will be the consequence for many elderly or desperately ill people. Recovery for loss of a chance can be seen therefore as the corollary of a medical duty of care directed to achieving the best chance of a successful outcome though it call for no more than reasonable care and skill in that endeavour. Clearly, where in such a desperate case the patient’s chances are in any event below 50%, the doctor is only liable if he or she fails to bring to bear reasonable care and skill in avoiding loss of the chance that is left. Judging that fairly with an appreciation of the difficulties for the doctor in making that judgment is important, as otherwise the doctor for fear of liability may choose the defensive course rather than the best one amongst limited options.

27 Suppose, therefore, in the above example there is a less than 50% chance of having the leg saved, though the chance is still significant. Suppose the treatment to save the leg involve potentially countervailing risks, because the patient is elderly and frail. It may be, for example, that the leg is close to gangrenous. In weighing up those risks, no more than reasonable care and skill is called for, but the doctor still needs to direct his or her mind to that task. So too here. In the present case, this issue finds its counterpart in the difficult decision whether and when to introduce the steroid sparer Imuran. Its benefit lay in reducing the risks of bone fracture associated with a heavy dosage of corticosteroid in the form of either prednisolone or dexamethasone. Yet Imuran had its own potential risks for kidney failure. The trial judge adjudicated upon the competing considerations, concluding that there was nonetheless a breach of duty of care in failing to introduce the Imuran on or about 10 June 1992 as a steroid sparer.

28 I agree that there is no basis for disturbing that finding on appeal. But that dilemma of competing risks concerning Imuran does emphasise the importance of not considering breach of duty of care in isolation from the chance in question. If a particular treatment offers a small, but still appreciable, chance of a beneficial outcome, it may nonetheless not be negligent to withhold it, where there are countervailing risks of sufficient magnitude from its introduction. That said, one would still expect the doctor in the exercise of reasonable skill and care to explain the treatment options with their attendant competing risks. Here it appears that the doctor did not give such advice to the child or her parents, so far as either of the breaches were concerned.

29 Thus far, as I have said, the High Court has not been faced with having to determine the permissibility of recovery for loss of a chance in a medical negligence case. In Naxakis v Western General Hospital (supra), the High Court ordered a new trial where the trial judge had withdrawn a case from the jury that would have raised that issue. The issue was whether the plaintiff had been deprived of a chance of avoiding a burst aneurysm by failure of the doctor and the hospital to diagnose it or at least identify it as a possibility requiring an angiogram. The High Court’s decision was based simply on there having been sufficient evidence of negligence in causation of the injury so that the matter should have been left to the jury ultimately to determine. It was therefore strictly unnecessary to deal with the argument of lost chance.

30 Nonetheless, two of the judges, Gaudron J and Callinan J, by way of dicta, considered that issue, reaching a diametrically opposite result. Gaudron J elaborated on her views for rejecting loss of a chance (at 277-81). Callinan J expressing the contrary view that there was a place for the doctrine “particularly in cases involving the practice of what is even to-day said to be an art rather than a scientific skill” (at 313-4) and provided that “the chance lost must be a real one and of some substance, even though less than a 50% chance”.

31 It is instructive to consider the reasons advanced by Gaudron J for rejecting the notion “that, in a case such as the present, a plaintiff can recover damages on the basis that what has been lost is a chance of successful treatment” (at [36]).

32 Gaudron J begins with the proposition that it is well settled that where breach of contract results in loss of a promised chance, there is an actual compensable loss. Damages will be awarded “by reference to the degree of probabilities, or possibilities, inherent in the plaintiff’s succeeding had the plaintiff been given the chance which the contract promised”; Sellars v Adelaide Petroleum NL (supra) at 349. Likewise, damages may be recovered for a commercial opportunity that is lost in consequence of a breach of contract (The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64). That loss of a commercial opportunity is also “loss or damage” for the purposes of s82(1) of the Trade Practices Act 1974 (Cth) (Sellars v Adelaide Petroleum NL (supra) at 348 per Mason CJ, Dawson, Toohey and Gaudron JJ at 364 per Brennan J). All of these are of course cases on damages. They are not cases about whether a particular historical event has occurred, where the issue is one of causation, at least where the event is not hypothetical.

33 Gaudron J concludes that “there is no reason in principle why loss of chance or commercial opportunity should not constitute damage for the purposes of the law of tort where no other loss is involved. However, different considerations apply where, as here, the risk eventuates and physical injury ensues” (Naxakis at [29]). But what happens if physical injury actually ensues, with the prospect of yet further injury? Is the latter recoverable by way of lost chance? Malec, cited by Gaudron J, strongly suggests it is. In Malec the plaintiff’s exposure to brucellosis injured his back. Thus the negligence caused compensable injury, on balance of probabilities. But the plaintiff’s successful claim in terms of lost chance was for a neurotic condition (depression) following that injury and loss of his capacity to work. The problem facing the Court was that this was a condition that could have happened in any event.

34 Precluding recovery for loss of a chance in such a case in tort would be difficult to justify, if it were nonetheless recoverable in contract. That outcome would simply lead to claims for medical negligence being brought against the doctor in contract instead of tort, relying upon an implied contractual term. It would be a term that the medical practitioner will undertake to exercise reasonable care and skill in the provision of advice and treatment, with its corollary of bringing to bear that reasonable care and skill in maximising the chances of a successful outcome, subject to patient choice and the practical availability of treatment.

35 Malec settled in the case of damages that an all or nothing approach was not to be applied to hypothetical events, even past ones, nor to future events. At 642-3 the majority said:

“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.”

36 The present case too turns on a hypothetical event. It asks what would have happened if a lower dosage of corticosteroids had been prescribed, or the steroid sparer introduced on 10 June 1992, in terms of the prospect of the appellant avoiding the bone microfractures that came about. While the prospect has not been quantified, and indeed may be very difficult to do so with any precision as several experts made clear, the plaintiff did indeed lose a material chance, though below 50%, of avoiding that adverse outcome that eventuated.

37 At first sight Sellars v Adelaide Petroleum NL appears to stand in the way of recovery for less than even chances. The majority said: “When the issue of causation turns on what the plaintiff would have done, there is no particular reason for departing from proof on the balance of probabilities notwithstanding that the question is hypothetical” (at 353). The majority applied the Malec approach, but only to the assessment of damages:

Malec

damages

Trade Practices Act

38 The court then went back to the issue of causation saying (at 355):

“…The principle recognised in Malec was based on a consideration of the peculiar difficulties associated with the proof and evaluation of future possibilities and past hypothetical fact situations, as contrasted with proof of historical facts. Once that is accepted, there is no secure foundation for confining the principle to cases of any particular kind.

some

39 I consider that the reasoning in Sellars on causation and damages is reconcilable with allowing recovery for loss of a less than even chance in medical negligence cases. Sellars was a Trade Practices Act s52 case involving misleading and deceptive conduct. In such a case, while there is a duty not to misrepresent or mislead, it could not be gradated in terms of chance. There is no corresponding duty as is imposed on a doctor with regard to bringing to bear reasonable care and skill in maximising the chances of a successful medical outcome.

40 Moreover, in medical negligence cases causation must still be demonstrated at greater than 50% probability in two respects. First, the chance must be proven to exist on balance of probabilities. Second, the plaintiff must prove on balance of probabilities that if offered the chance lost, in terms of treatment, the plaintiff would have elected to have that chance. Thus “where the chance lost was a chance that the plaintiff may have acted in such a way as to receive a benefit or avert a detriment, the plaintiff must prove on the balance of probabilities that there was such a chance and that the plaintiff would have so acted” (per Badgery-Parker J in Tran v Lam NSWSC, 9 February 1995, unreported BC 9504451). That is an important control mechanism. It means that loss of a chance cannot be invoked where there is not a greater than 50% chance that the patient, properly advised, would have undertaken the particular course of treatment or operation. That is so though we are here dealing with a hypothetical event.

41 Here there is similarly no escape from showing on the balance of probabilities that the appellant would have accepted proper advice about dosage had it been given; that is, to introduce Imuran and not to substitute dexamethasone for prednisolone in the way that occurred. The trial judge gave answers in favour of the appellant to those questions. Likewise, were Chappel v Hart (1998) 195 CLR 232, regarded as a loss of a chance case, contrary to the way it had been presented at trial and contrary to the way Gaudron J categorised the appellant’s loss, it would then stand as clear authority for applying the balance of probabilities to the question in that case. That question was whether the plaintiff would have chosen a more experienced surgeon had the risk (perforation of the oesophagus) been explained to her, so as to maximise her chances of a successful outcome.

42 Similarly here, the present claim can be framed in terms of losing the benefit, not of a superior surgeon with better chance of circumventing the operation’s risks, but of a superior treatment regime with better chance of circumventing the risks of bone microfractures, while still curing the Lupus. In each case that better chance was less than even, but still material. There could be no question but that the better chance was a thing of value, even if its quantification posed considerable difficulty.

43 In Malec, there was no doubt that some injury occurred caused by the brucellosis on balance of probabilities, namely injury to the plaintiff’s back. In contrast, in the present case the only damage is a lost chance of a better outcome. There is no associated recoverable injury brought about on the balance of probabilities. But I do not consider that distinction matters. In Malec, nothing was made of that distinction. It should not matter here, either.

44 It is concededly the case that an unqualified all or nothing approach in allowing damages for the actual harm suffered affords, in the words of Gaudron J in Naxakis at [30], “at best, rough justice”. Moreover, as Gaudron J explained, problems associated with proof of causation can be exaggerated. This is when it is appreciated that, for the purposes of allocation of legal responsibility “if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring”; citing McHugh J in Chappel v Hart.

45 However, it would be productive of injustice if the plaintiff were to receive 100% of the loss where a chance or prospect exceeds 50% (say 51%) yet receive nothing at all if such loss were, say, 49%. The fairest solution is to base compensation on whatever be the percentage, whether above or below 50%, wherever one is dealing with future events or hypothetical ones. As Luntz (supra) at 195 puts it, referring to a 1992 article:

“The article that Hedigan J in Naxakis 145 found persuasive does advance reasons of policy for denying the extension of liability to loss of chance. One is obviously spurious. The article refers to two commentators and two courts that have pointed out that loss of chance leads to statistically more wrong decisions than right ones. In a group of 99 cases, of which only 33 would have survived, allowing recovery for all 99 means that 66 are wrongly decided. This is like saying that a clock that has stopped is better than one that is a minute fast, since it is right twice a day, whereas the one that is fast is never right! Most people would prefer the fast watch to the stopped one as being much more useful. In this example, the defendant would, if loss of chance were denied, never pay any compensation despite repeated acts of negligence. By requiring the defendant to pay 33 per cent of the assessed damages to all, the defendant compensates exactly the total damage that has been caused by negligence.”

46 What Callinan J describes in Naxakis at [129] as a possible approach may therefore be thought too generous to plaintiffs, if understood as allowing 100% recovery where the chance lost is merely 51% but if 50% or below allowing the full percentage. However, if Callinan J is understood as simply illustrating the outcome of the traditional approach compared to the loss of a chance approach in a medical negligence context, that example brings out the difference with clarity.

47 In Naxakis when Gaudron J explained why she rejected loss of chance as a basis for recovery in medical negligence cases, she observed that the doctrine of loss of chance would not necessarily benefit individual plaintiffs. “If damages were to be awarded for the chance lost, rather than the actual injuries or disabilities suffered, consistency would require the damages be assessed according to the value of the chance, not the injury or disability. Thus a chance which is 51% or greater but less than 100% must result in an award of damages less than would be the case if damages were awarded for the injury or disability which eventuates” at [33].

48 While that observation is undoubtedly correct where the chance is above 50% but below 100%, several points can be made. First, the plaintiff who suffers an injury which on the balance of probabilities would have occurred anyway but nonetheless is deprived of a chance of averting that outcome as a result of the defendant’s negligence, on the all or nothing rule that plaintiff would receive nothing. The plaintiff is then indubitably worse off.

49 Second, damages for future loss are customarily discounted already for vicissitudes. Likewise, damages for loss of future prospects or in relation to hypothetical past events are discounted on Malec principles. This is so even where the plaintiff proves on the balance of probabilities that the defendant did cause harm in the form of a risk that eventuated; Luntz at 186. That Malec approach to damages emphasises the unfairness in the medical negligence context of not then allowing a loss of chance approach where less than even.

50 However, Rogers v Whitaker (1992) 175 CLR 479, as Callinan J pointed out in Naxakis, was a case where the plaintiff received full damages, once it was established on the balance of probabilities that she would not have had the operation. That seems to be a corollary of the denial of any damage had it been merely established that she might not have had the operation, as distinct from would not have had the operation; compare Callinan J in Naxakis at [129]. There is much to be said even in warning cases for discounting the damages to take account of the fact that harm might still have occurred in the absence of negligence, in particular the harm of future loss of sight from not having the operation. That was not however how the case appears to have been argued. There was also the fact that the plaintiff had sought reassurance on the very risk, slight as it was, that came home.

51 Finally, I should make brief reference to recent UK authority. Currently, Gregg v Scott [2002] EWCA civ 1471 awaits the result of appeal in the House of Lords. This was a case where the defendant, Gregg, carelessly failed to diagnose Scott’s cancer. It had grown larger as a result, resulting in the loss of a chance for effective remission had treatment commenced earlier. The chance lost was below 50% and the Court of Appeal denied recovery. Under the Malec approach the question, what would have occurred with earlier diagnosis, is hypothetical. It would therefore open the door to allowing recovery for the lost chance if a material chance were thereby lost. It remains to be seen whether the House of Lords allows on similar reasoning pure loss of a chance to constitute actionable damage in a medical negligence case. Earlier in the Court of Appeal Simon Brown LJ concluded that recovery should not hinge upon the accidental fact of whether the plaintiff could show a “clearly demonstrable injury upon which to hang a parasitical claim for the loss of chance”. He cited against that proposition the earlier House of Lords decision in Hotson v East Berkshire Health Authority (supra). That, as I have said, was a loss of chance claim too. But it followed a past historic event, whose outcome was inevitable, as distinct from that in Malec which was not inevitable; see Jane Stapleton “Cause-in-fact and the Scope of Liability for Consequences” (2003) 119 LQR 388 at 424.

OVERALL CONCLUSION

52 While intermediate courts of appeal in Australia do not yet have the guidance of a High Court decision adopting as ratio loss of chance in medical negligence, the trend of intermediate appellate and first instance authority in Australia favours that approach. There is much to be said for consistency, whereby a chance above or below 50% obtains no more and no less in compensation than the corresponding percentage, instead of an all or nothing approach. That should not open floodgates to loss of chance claims either in the medical field or more generally. First, the loss of chance must itself be established on the balance of probabilities, as also that the chance if offered would have been taken. Second, it is the very nature of the doctor’s duty of reasonable care and skill that directs it to achieving the best chance of a favourable medical outcome, subject to informed patient choice and what is practically available. Duty in other spheres may have varying dimensions.

53 The present is a case where loss of a chance does afford a proper basis for compensation. It highlights the importance of considering the duty of care not in isolation, but in conjunction with a fair assessment of the difficult task facing a doctor having to choose between various options each with their own risks.

54 What is said by Professor Luntz in his article on loss of chance remains apposite:

“where a medical practitioner fails to exercise reasonable care, the aim of the law generally is not to reposition the plaintiff as though no treatment had been given, but as though proper treatment had been given … whether the claim lies in contract or tort. In many instances proper treatment could have done no more than give the plaintiff a chance of cure or alleviation of a pre-existing condition. This is something of value, something for which many people would give money. The law should treat such a chance as worthy of protection” (at 197).

55 Accordingly, I would agree with the orders proposed by M W Campbell AJA.

56 M W CAMPBELL AJA:

INTRODUCTION

57 There is also a notice of contention by the respondent in respect of one of the two allegations of negligence found by Studdert J to have been made out.

Background

58 The appellant was born on 29 December 1977. She was diagnosed in early January 1992 to be suffering from systemic lupus erythematosus (lupus or SLE). This is a very serious inflammatory condition in which a characteristic rash is associated with widespread internal pathology including kidney damage.

59 The appellant’s then general practitioner, Dr Almeda, referred her to Dr Donald, a specialist paediatrician. On 8 January 1992 he prescribed Prednisolone, 50 mg a day, to treat the lupus. Prednisolone is a corticosteroid drug.

60 Dr Donald becoming unavailable the appellant’s treatment was then taken over by the respondent. He first saw her on 3 February 1992 and she continued in his care until passing into the care of Professor Clancy in January 1993. The respondent is a paediatric immunologist and had been in that specialty since 1969. From 1980 until 1991 he was the director of immunology at Royal Children’s Hospital Melbourne and thereafter moved to Newcastle and acted as a locum for Dr. Donald.

61 On 24 August 1992 the appellant was admitted to the John Hunter Hospital at Newcastle suffering from vertebral microfractures.

62 It became common ground at the trial that the microfractures were caused by the corticosteroid dosages that the applicant had been having up to that time. The mechanism being the development of osteoporosis in the appellant’s spine.

63 In his careful and detailed judgment Studdert J traced the course of the appellant’s treatment by the respondent, Dr. Nanra, a renal specialist, Dr. Miller, a psychiatrist, and other care providers. I shall return to aspects of this account later.

64 Up until 8 June 1992 the appellant continued on a high dosage of Prednisolone albeit the level fluctuated depending upon her condition.

65 On that day the respondent substituted Dexamethasone for the Prednisolone and the appellant continued on that drug until after the fractures in doses to which I shall refer later.

66 For reasons to which it is unnecessary to go Studdert J found that the substitution breached the respondent’s duty of care to the appellant. There has been no challenge to that finding.

67 The Judge also found that in not introducing a “steroid sparer” Imuran to the appellant’s treatment regime on or about 10 June 1992 the respondent was in breach of his duty of care to the appellant. That finding has been challenged in a Notice of Contention.

68 Having concluded that those breaches of duty of care had been made out and rejected a number of other allegations, Studdert J turned to the issue of causation. He held that “the [appellant] has failed to prove damage resulting either from the failure to introduce Imuran on or about 10 June 1992 or from the prescription of Dexamethasone in June 1992”.

69 This appeal challenges that finding. It is, however, appropriate to deal first with the issue raised by the Notice of Contention.

Notice of Contention

70 It is convenient to begin the consideration of this issue with reference to a number of findings in Studdert J’s judgment.

b. It was well known in 1992 that corticosteroids could cause osteoporosis.

c. The risk to the (appellant) of vertebral compression fractures due to osteoporosis caused by corticosteroids was not a farfetched or fanciful risk but a risk that was foreseeable during the time that the (respondent) was treating the (appellant) prior to 24 August 1992.

d. Whilst the possibility that the administration of corticosteroids to the plaintiff for less than eight months may lead to osteoporosis and vertebral compression fractures may not have been considered to have been high, nevertheless it was a risk which, if it materialised, would be likely to have very serious consequences for the plaintiff. Vertebral compression fractures occurring in a developing body could only be assessed as major harm.

71 The Judge noted that the respected text book of Paediatric Rheumatology by Cassidy & Petty (first published in 1990) contained a passage as follows:

“Corticosteroids should be employed in the management of paediatric rheumatic disease only for well-delineated indications, in the lowest dose required for achieving those objectives, and for the minimal period of time. The toxicities of the corticosteroid administration represent exaggerations of the normal physiologic effects of this class of hormones. In addition to the manifestations of Cushing’s syndrome, a number of toxicities should be cited for importance in children under chronic pharmacologic treatment for rheumatic diseases: hypokalemia and alkalosis, edema, glucosuria, increased susceptibility and peptic ulceration, myopathy, behavioural disturbances and psychosis, posterior subcapsular cataracts, osteoporosis and vertebral compression fractures and inhibition of linear growth.”

72 The Judge also noted:

The Pharmaceutical Basis of Therapeutics

73 From paragraph 8 to paragraph 49 of his judgment, Studdert J set out the course of treatment for the appellant’s lupus during 1992 against the background of her signs and symptoms of that disease during the same period.

74 It is sufficient for present purposes if I refer to that material in much shortened form.

75 Dr. Donald on the 17 January 1992 found the response to the Prednisolone favourable with the rash “minimal”.

76 The respondent commenced to treat the appellant on the 3 February 1992. He then found her asymptomatic although her urine had shown traces of blood on multistix. He continued the dosage of 52 mg per day.

77 On 17 February 1992 the rash was prominent and other symptoms present. A decision was taken to refer the appellant to Dr. Nanra, a renal specialist, and the dosage was increased to 75 mg per day. Studdert J accepted that the respondent’s reason for so acting was that he considered the lupus recrudescent and that there was kidney involvement.

78 On 27 February 1992 the appellant was feeling somewhat better and the dosage was reduced to 62.5 mg a day. The respondent recorded however that he was worried about the appellant’s renal function.

79 On 9 March 1992 the dosage was reduced to 50 mg per day. Studdert J accepted that on that day the appellant’s mother had, for the first time, voiced concern that the appellant was losing weight. On that day there was also a discussion as to the appellant’s periods having ceased. It is not clear whether that matter was first raised on that day or on 27 February but in any event the Judge accepts that it was raised and that the respondent subsequently advised the plaintiff that the periods would resume after the treatment with corticosteroids ceased.

80 On 10 March 1992 Dr. Nanra’s report to the respondent referred to symptoms raising the possibility of tubular intestinal disease as a manifestation of SLE in the kidney and observed “in the interim I am very comfortable with her present steroid dosage”.

81 On 13 March 1992 the dosage was reduced to 40 mg per day. Later the doctor wrote of that consultation that the appellant was “starting to show signs of Cushingoidism with the development of hair on her upper lip and a slightly moon face”.

82 On 4 May 1992 Dr. Nanra wrote to the respondent discharging the appellant back to his care. He reported that the appellant had no evidence of renal disease and that her renal function was “near normal”. He advised that it was important to monitor the appellant’s urine for any abnormalities at least once or twice every two or three months.

83 On 11 May 1992 the respondent noted that there was erythema at the base of the finger nails and on the toe nails and he decided to keep the appellant on the then current dose of 40 mg, writing that if the erythema improved he was going to reduce the dose at the next consultation. On 28 May 1992 the appellant developed a fever and upper respiratory tract infection for which she attended the John Hunter Hospital and was seen by Dr. Banna. Urinalysis raised suspicion about renal involvement. Dr. Banna consulted with the respondent and the Prednisolone dose was increased to 60 mg per day.

84 On 1 June 1992 the respondent noted the appellant’s father’s concern about her emotional lability. But it did appear that she had responded well to the increased dosage. The doctor’s assessment was that the likelihood of renal involvement at that point was “very low”. On that day the respondent determined that the dose continue at 60 mg per day for four days and he wrote that he then planned to reduce that to 55 mg per day for two weeks with a subsequent reduction to 50 mg per day.

85 On 22 June 1992 the appellant saw the respondent. The judgment noted:

“Some fourteen days earlier, at the [respondent’s] initiative, a controversial change in drugs had occurred. Dexamethasone was substituted for Prednisolone with a dose starting at 10 mg on 8 June reduced to 9 mg on 15 June. On 22 June, 1992 a decision was taken, at the suggestion of Mr Rufo, to split the dose so that the plaintiff should take half the medication in the morning and half of it in the afternoon. That suggestion was implemented by the [respondent], and as from 22 June 1992 the daily dose of Dexamethasone was reduced to 8 mgs.”

86 On that day the appellant complained that she was very thin with a very puffed faced and twig legs. The respondent’s notes contain no record of that appearance but he did report to Dr. Donald on 26 June 1992 recording the appellant’s ongoing emotional problems. The appellant was referred to Dr. Miller a psychiatrist for assessment. She had been seeing a psychologist, Ms Wallace.

87 On 29 June 1992 the appellant was seen by Dr. Miller who recommended Clomipramine medication and continued attendance with Ms Wallace.

88 On 13 July 1992 the appellant complained to the respondent of a cough and green sputum. The weekly urine tests disclosed no renal involvement. The doctor noted that there was “no objective sign of neuropathy” but this was said to be a mistake for “no objective sign of myopathy”. The doctor considered the strength in the appellant’s legs to be reasonable, however he gave evidence that proximal steroid myopathy would not be unexpected having regard to the steroids the appellant had by then taken. Having regard to the evidence of the appellant’s father and some evidence from her mother as to her physical appearance Studdert J accepted that on the balance of probabilities the appellant’s appearance had altered significantly by that time and that there was probably wasting of muscles present. Mrs Rufo gave evidence as to the appellant’s appearance at that time and said that her face was big, “she was scrawny and she had this big belly and these chicken legs. These very, very thin, thin legs”.

89 On 14 July 1992 the respondent wrote to Dr. Kamal, by then the appellant’s general practitioner, saying that he would like the appellant to continue on 8 mg of Dexamethasone until the nasal discharge and cough had cleared up and then for the dose to be reduced to 7 mg per day.

90 On 20 July 1992 Dr. Miller reported that there had been an improvement in the appellant’s symptoms, no doubt from the point of view of his speciality. He considered that she should remain on the medication he had prescribed for six months and that there was no need for her to see him again.

91 On 10 August 1992 the respondent saw the appellant. By this time her weight had fallen to 39.4 kg compared with her weight of 50.5 kg on 2 January 1992. The respondent was seeing the appellant at the John Hunter Hospital at that time and Studdert J notes that that was the first time the respondent personally noted any weight loss. On that day the respondent noted that the appellant had picked up over the past two to three weeks. Her teariness had gone and the weakness in her legs had improved. He noted steroid proximal myopathy and pot belly. He also noticed that the legs were thinner and weaker. There was no note of back pain, however, Studdert J accepts the evidence of the appellant and her father that she had difficulty walking to the surgery from the car park, presented to the surgery bent forward and had to be assisted into position on the consultation couch. On that day the respondent reduced the dose of Dexamethasone to 6 mg per day.

92 The appellant presented to Dr. Karmal on the 11, 14 and 15 of August with pain in her lower back and an x-ray was arranged on 11 August 1992.

93 On 20 August 1992 the appellant attended at John Hunter Hospital with faecal impactation and back pain. The hospital notes record that the back pain had been present for the past month and was worse with movement but relieved by rest. The plaintiff was kept in hospital overnight.

94 On 24 August 1992 the appellant experienced severe back pain at home and was admitted to the John Hunter Hospital where she remained until being discharged on 25 September 1992. The hospital records reveal that she had suffered vertebral microfractures and kyphosis of the spine. Studdert J considered it probable that the fractures accounted for the acute episode on that day and that they occurred on or about 24 August 1992. The appellant was treated by Dr. Ho for her back condition.

95 She was also treated in hospital by the respondent who had reduced the dose of Dexamethasone to 1 mg per day by the time of her discharge. The judgment concluded this review of the progress of the appellant’s disease and treatment with the following paragraphs:

“Dr Bleasel gave evidence, which I do not understand to have been challenged, to the effect that the plaintiff suffered osteoporosis by reason of the regime of corticosteroids and that the vertebral collapse was also due to the steroid therapy.

96 It is now convenient to examine the evidence of the doctors who dealt with this issue. Studdert J found all the doctors, including the respondent, honest. He did question the respondent’s reliability in respect of some conversations as to which he relied upon imperfect notes. He rejected an attack on the credit of Professor Clancy but did observe that he thought the professor had some sympathy for the respondent.

97 Dr. Sutherland is a clinical immunologist with extensive treatment experience of patients suffering from lupus. The Judge accepted him as well qualified to address the issues in the case.

98 Studdert J took from the doctor’s first report that he considered the prompt introduction of corticosteroids as appropriate and that once kidney disease was under control it was Dr. Sutherland’s opinion that vigorous attempts to withdraw the (appellant’s) corticosteroid intake were required. The doctor, he noted, considered that this regime could have commenced in the latter part of the March or early in April 1992 and that steroid sparing agents should have been introduced at that stage. Imuran (Azathioprine) is such an agent.

99 During a break in his cross-examination Dr. Sutherland produced a further report which said, inter alia:

“As you were aware, I was taken through the individual steps in the management of Ms Rufo’s illness. At each of those steps, I was challenged to express my approval or otherwise for that intervention and the rationale underlying it. At no point did I offer any direct criticism, but the exercise may have provided an insight into why a competent and well regarded clinician became involved in such an unfortunate series of events. Each of the steps was justifiable in its own right, but it seems that at no time did any one take the metaphorical step backwards, to review the entire clinical problem in a wider context.

1. Michelle continued to require high (and therefore toxic) doses of corticosteroids for a protracted period. While doses such as 40 or even 60 mg of prednisone were bandied around, these must be seen in the context of a young woman who weighed little more than 40 kg. As I pointed out repeatedly, at some time between April and May of 1992, the ongoing necessity for high dose corticosteroids should have provoked concern, and therefore the consideration of the introduction of a second agent, as a ‘steroid sparer’.

2. The ongoing need for high doses of oral corticosteroids led to a steady increase in the risk of steroid induced osteoporosis, and prophylactic treatment with oral calcium and a vitamin D preparation should have been introduced at an early stage. I mentioned that the need for a calcium supplement in such circumstances was well established prior to Michelle’s illness, and I will attach a reproduction of the relevant section from a contemporary textbook to confirm this. Again as I noted, it was my opinion that there was sufficient evidence to mandate the use of vitamin D supplements as well, as shown by the abstracts that follow.

3. When Michelle lost one quarter of her body weight, this should have been regarded as a cause for major concern, and the cause for this unexplained weight loss should have been sought. Malnutrition of itself is a cause of osteoporosis, and thus possibly contributed to Michelle’s problems subsequently. Certainly if her diet was deficient in calcium (the opinion of a dietician at the time), then this may have been a major risk factor for steroid induced osteoporosis. In addition, any clinical validity there may be in assessing the effectiveness of oral corticosteroid treatment by the appearance of cushingoid features such as a ‘moon face’ must surely have been negated by such a degree of weight loss.

100 Studdert J summarised portion of Dr. Sutherland’s evidence in cross examination as follows:

“[H]e was critical of the treatment given before 1 June and, summarising what he said at T 349, it was Dr Sutherland’s view that by April or May it was imperative to recognise the ongoing need that the plaintiff would have for corticosteroids and the inevitable toxicity associated with them. Alarm bells should have been ringing to introduce other agents, he said, referring to steroid sparers, by ‘about April or May at the latest’.”

101 Following questions referring to a flare up which occurred on 28 May 1992 Dr. Sutherland gave the following evidence:

“Q. If in fact those tests and other clinical investigations led a person in the position of Dr Hosking at the time to the view that there was a flare-up of the disease activity but not such as it involved the kidneys, you would not be in a position because you weren’t there – to pick up your language – to say that the decision not to introduce Imuran was reasonable?
A. I’m not aware I’ve ever said it’s unreasonable. I thought it was overdue, that’s not the same. We talked about the clinical judgments here and that’s very different from straying outside the bounds of reasonable practice and I’ve never suggested that.

HIS HONOUR: Q. Never suggested what?
A. That Dr Hosking strayed outside of acceptable clinical practice. I believe that Imuran and Plaquenil should have been started early but then to say, ‘Does anybody who disagrees therefore behaving unacceptably?’, obviously is a very different question. He was there and he saw a sick child. He is a reputable clinician whose judgment I value and I said that. It’s a very difficult – I don’t know how to answer it.

Q. Just so that I can understand what you are saying though, are you telling me that you are not saying that at any stage of treating this plaintiff the doctor strayed outside the bounds of reasonable practice?
A. By the standards prevailing in 1992?

102 When asked how he reconciled the above responses to what he had written in his further report Dr. Sutherland responded:

“I don’t see any inconsistency at all and it was this that prompted me to write this second report. I was concerned that I was being taken through a process one step at a time, challenged at each individual step at a time, challenged at each individual step was outrageous, outside currently accepted standards of practice.

My concern is that, as I said, nobody took the proverbial steps backwards and said, ‘Just a minute’. There are three areas of major concern in this sorry story and that’s why I issued that second report. Once again, we could go on for days taking me through every single step, is that step unreasonable – no. You know, can I be sure that step was wrong – no. But when you look at the whole picture and you look at what happened it’s not reducible to hundreds and hundreds of little steps.

103 Dr. Champion is a rheumatologist with a consulting role in paediatric rheumatology. Studdert J accepted that he was well qualified in his area of expertise. Dr. Champion explained the overlap between the disciplines of immunology and rheumatology. Amongst other things he said that throughout rheumatology there is a very substantial undercurrent of immunology. The doctor has a particular interest in and a large experience of osteoporosis.

104 Dr. Champion was critical of the length of time during which what he regarded as relatively high dosages of corticosteroids were maintained. He was of the view that in the exercise of reasonable treatment Imuran should have been prescribed for the plaintiff at the time of the flare up in May 1992. He rejected the proposition that it was reasonable management to continue without Imuran for a couple of months after 28 May 1992.

105 Professor Sturgess is the senior staff specialist in rheumatology at St George Hospital and the director and supervising pathologist in the immuno-rheumatology laboratory at that hospital. Studdert J considered him well qualified in the specialist fields of rheumatology and immunology. In his report of 11 January 2000 he said amongst other things:

“Severe active lupus in a 15 year old girl demands high dose corticosteroid therapy. Dr Hosking also took advice from a renal physician. Renal lupus is a major factor in determining corticosteroid dosage. At each visit Dr Hosking considered the dosage and reduced the dose if the patient was well. One cannot reduce the dose of corticosteroids over just a few weeks. Experienced lupus specialists routinely continue high dose corticosteroids for months. A typical regimen would be 50mgs daily for a month, then 37.5mgs daily for a month then 25mgs daily for a month then a slower rate of reduction. The above regimen assumes that the patient rapidly responds and does not flare. If response is slow or there are flares then the dose is increased. Dr Champion argues for a ‘brief’ high dose course of therapy, but his approach would not be standard therapy in the lupus community. Indeed if therapy were reduced too fast, and the lupus patient had brain or renal damage, there would be an argument that the failure to use standard high dose corticosteroids would be negligent.

106 Professor Sturgess continued:

“Essentially my management would not have significantly differed from Dr Hosking’s. In particular:-

1) I would have started with at least 50 mgs of prednisolone daily for at least a month. If she had periodic flares, as she did, I would have increased the dose without hesitation.

2) Like Dr Hosking, I would not have initially used Imuran, because of the known additional side effects which can occur. I often use Imuran, but usually try prednisolone alone at first to see if the patient will settle easily. You should know that Imuran is not without side effects of its own – in the last 18 months I would have seen patients with drug induced fever, hepatitis and leukopenia all from Imuran. It should not be regarded as an easy option.

3) I may have added Plaquenil, but I would not have expected much. It would have no benefit in terms of her renal lupus.

107 Professor Clancy is a specialist immunologist. He is currently Professor of Pathology, Discipline of Immunology and Microbiology at the Faculty of Medicine and Health Sciences at the University of Newcastle and Director of the Hunter Area Immunology Unit at Royal Newcastle Hospital. Judge Studdert accepted that he was well qualified in his areas of expertise. He has been the appellant’s treating specialist since the beginning of 1993.

108 In a letter to the appellant’s solicitors of 7 February 1996 Professor Clancy said, amongst other things:

“Between the time of Michelle’s diagnosis and me looking after her, one can say that her treatment was probably appropriate though it was attended by unexpected and unusual side effects. I commented at one time that the use of Imuran by itself was a little unusual in lupus, but then previous experience of steroids conditioned that. When I saw her she was on Plaquenil. I should also add that I have been forced to use significant amounts of corticosteroids on a number of occasions in Michelle, even knowing her background. I think it is very important for you to understand that this young lady has a very serious illness and her long term outcome could be compromised not by the use of steroids in the past, but by the underlying disease.”

109 In a later letter of 16 July 1996 he said, amongst other things:

“…My comments regarding question 11 specifically relate to this young lady. Subsequent to writing this letter I have talked with a number of my colleagues with experience in clinical immunology, and frankly none have seen the particular course that unfortunately Michelle underwent, ie in a person of this age developing symptomatic osteoporosis over the timeframe and at the dose of steroids. It really is an extremely unusual issue, though obviously older people with lower bone mass and particularly when given longer terms steroids are more likely to get this particular problem. It is thus likely that a variety of factors may well have contributed to the osteoporosis, although clearly steroids were one such factor.”

110 Studdert J noted that in his oral evidence Professor Clancy was not critical of the regime of corticosteroid steroids and he did not regard it as unreasonable for the defendant not to introduced Imuran.

111 Studdert J said that he accepted the respondent’s expertise in the field of paediatric immunology. He noted that the respondent acknowledged that lupus was not his specialty nor was osteoporosis. The Judge said:

“Indeed he had not heard of corticosteroids causing fracture in the spine, although he was aware that steroids affected bone density and he acknowledged that they would have an effect on growing bone.”

112 The judgment records that the respondent considered the outcome in this case to be extraordinarily rare and said that he did not turn his mind to the possibility of fractures when prescribing to the plaintiff over the period of 8 months nor indeed did he apply his mind to the issue of osteoporosis. He did, however, say that he knew in 1992 that glucocorticoids caused osteoporosis and he agreed that compression factors were recognised as an adverse effect of corticosteroids. Studdert J said:

“As far as Imuran was concerned, the defendant did give consideration to its use but, having considered Cassidy and Petty, concluded the dangers of the introduction did not warrant its use.”

113 The relevant head of negligence was “failing to reduce the high dosage of corticosteroids in particular by introducing steroid sparers Plaquenil and Imuran as early as February 1992”.

114 Studdert J rejected the allegation based upon the failure to introduce Plaquenil and it may be set aside.

115 In his judgment the Judge referred to the medical evidence already mentioned and went in some detail to further material from the reports and evidence of the various doctors including the respondent.

116 I do not think it necessary or practical to go to all of that material, however, I should refer to some aspects.

117 The Judge fixed the time at which Dr. Sutherland thought that Imuran should be introduced as May 1992. He noted that Dr. Champion was of the opinion that the Imuran should have been considered “once the renal effects of the lupus were known”.

118 I think the expressed reason for that view of Dr. Champion significant. Studdert J summarised it as follows:

“[T]he defendant should have appreciated at the outset that there was going to be a long term requirement for steroids, and hence there was a need at the outset to build into the regime of treatment another agent to permit the reduction of corticosteroid doses to occur. He said this was particularly important because of the risk of osteoporosis.”

119 Studdert J referred to the expression of caution in Cassidy and Petty set out as follows:

“Specific immunosuppressive drugs have been used in the treatment of children who are seriously ill with rheumatic diseases when other modes of therapy have proved ineffective. However, few published reports have dealt with adequately controlled trials; many have been only incidental observations or case reports. In most instances these drugs are slow to begin exerting their pharmacologic effects. Therefore, they have proved more valuable in moderate – to long-term therapy than in an acute crisis. We would recommend only very circumspect use of immunosuppressive drugs in children. These agents are not presently approved for unrestricted use in children with the rheumatic diseases and should be regarded as experimental. Certain preconditions have therefore been suggested for their use in patients. Each of the agents has its own toxicities, and infection is a general concern. Little is known of the long-term effects of these drugs in children. Especially in children, the future oncogenic potential of some of these agents must be considered.”

120 However he also noted Dr. Champion’s comments that he did not agree with the use of the word “experimental”. The judgment goes on:

“In his opinion [Dr Champion’s], the plaintiff was to be regarded as ‘seriously ill’, and he considered that a low dose of Imuran was appropriate. In his opinion the potential side effects of Imuran were quite modest compared with the threat of osteoporosis.”

121 Studdert J noted that Professor Sturgess regarded the rate of reduction of steroids in the appellant’s case as within the bounds of reasonable medical practice, that the Professor considered it reasonable practice to use only corticosteroids for the first six months but that would not be the case if the respondent had been treating a post menopausal patient. The Judge commented, clearly correctly, “because of the risk of osteoporosis”.

122 Attention is drawn in the judgment to the acknowledgement by Professor Sturgess that by 11 May 1992 “he would have discussed the introduction of Imuran with the [appellant] and would have advised her that he thought such an introduction was “a good idea”.

123 Studdert J made the following finding:

“I consider it likely that had the plaintiff been told as at 11 May that it was ‘a good idea’ to start Imuran notwithstanding the possible side effects, the plaintiff would have accepted the advice given.”

124 He also said:

“I so conclude making my assessment of the plaintiff and her parents, who would, no doubt, have played an active role in decision making. I also take account of the plaintiff’s compliance with the regime of medication that had been prescribed up to that point of time.”

125 The Judge noted that Professor Clancy did not consider it unreasonable for the respondent not to have introduced Imuran as late as 1 July 1992. The Professor’s approach to Imuran and like drugs was to delay introduction until a “plateau” amount of corticosteroid needed to control the disease became known. The Professor had given evidence in chief that:

A. Are we still employing the dexamethasone?

Q. No, for the moment I want to leave that to one side.
A. Well, the issue there is that is it too late. It would have to be some reduction of risk but there would be less reduction of risk than with the first, that is the earlier, scenario we discussed.

Q. And less reduction in extent?
A. Yes.

398 The reference to “too speculative” is to be understood, amongst other things, in the light of the “very big unknown” to which he has drawn attention.

399 Further, the reference to “too speculative”, is not directed to the chance of less damage but rather to the extent of the damage. The fact that the extent of the damages may be difficult to quantify does not defeat the claim (Luntz – Assessment of Damages for Personal Injury and Death, 4 ed 101; Chaplin v Hicks [1911] 2 KB 786).

400 It is also convenient to note that, as Studdert J found, the cause of the appellant’s weight loss was never ascertained. The evidence was not available, whether provided by the respondent or not, for it to be inferred that the disability of the appellant could be traced to a cause in which the breaches of duty played no part (Watts v Rake).

401 Further, any osteoporosis occasioned by malnutrition would make the appellant more vulnerable to the effects of a smaller excess of corticosteroid than would otherwise have been the case. Causation, not duty, is the relevant issue.

402 The respondent contended that the appellant’s tables of calculations ignored the effect of the dosage consumed before 10 June 1992. It was put that the effect being cumulative the amount of any proven excess for the period after 10 June 1992 should not be compared with the appropriate therapeutic dose after that time but against the whole therapeutic dose consumed.

403 The appellant submitted that since it was common ground that the greatest loss of bone density was in the early months “the greatest significance ought to have been attached to minimising jeopardy to such of the appellant’s bone density as remained”. Whilst expressed in terms more appropriate to duty, the concept of vulnerability applies equally to questions of causation.

404 In the absence of a proper basis for treating the appellant’s spine as other than normal prior to the onset of the lupus, the known consequences of corticosteroid treatment and the fractures of 24 August 1992 it can be inferred that by June 1992 the appellant’s spine was in a very vulnerable condition.

405 Adopting a robust and pragmatic approach to the primary facts of this case (March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515; Wilsher v Essex Area Health Authority [1988] AC 1074 per Lord Bridge at 1090, Wallaby Grip (Bae) Pty Limited (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 per Beazley JA at 364) it seems to me that more probably than not the excess of corticosteroid consumed after 10 June 1992 in the context of the osteoporotic and vulnerable state of the appellant’s spine caused the loss of a chance that the appellant would have suffered less spinal damage than she in fact did.

406 Also as a matter of common sense it seems to me that the chance lost would be more than speculative or remote and, indeed, would be “of substance”, albeit falling short of a fifty one per cent chance.

407 In that last regard it is appropriate to note Dr. Champion’s evidence:

“Q. That’s why I use the word ‘range’ to try and make it a little easier.
A. There would be a reasonable expectation of getting to about 15 milligrams of Prednisolone by four months.

Q. Assume that had occurred and, taking into account the other factors that you’ve mentioned, can you indicate whether that would have had any effect on the likelihood of the kyphosis and fractures which she suffered or the degree of kyphosis and fractures that she suffered?
A. It would definitely have reduced the rate of progression of osteoporosis. It follows that it would have reduced the risk of osteoporotic vertebral compressions and the extent of – that is the number of vertebrae affected and the degree of compression.

Q. I’m going to take you to another question and I’ll see if you can answer it. In terms of the risk of any kyphosis and fractures, and I’ll just use those lay terms rather than the way you’ve described it for the moment, are you able to say whether on the probabilities she would have escaped with no injury?
A. Purely from the corticosteroid reduction alone I could not say that that would be more probable than not .”

408 Also relevant is Dr. Sutherland’s evidence:

“Q. I just take you to page 5 of your report and you will see in the third paragraph you are talking about March or April of 1992 and you said, ‘It seems certain that her osteoporosis would have been much less at that stage’, that’s March or April, ‘and on the balance of probabilities not of sufficient severity to cause fractures and subsequent kyphosis’. Do you see that?
A. Yes, I do.

Q. Now that’s talking about March or April?
A. Yes.

409 Studdert J commented upon that passage at [160].

410 In my opinion the appellant is entitled to a verdict on the basis of a lost chance that she might have suffered less damage than she in fact did.

411 It remains to consider the appellant’s claim to a verdict on the basis that she has proved causation of the damage suffered by her on the balance of probabilities.

412 Having regard to the views I have earlier expressed it is a prerequisite to the success of such a claim that Mr Brereton’s third proposition be accepted as valid and applicable to the facts of this case.

413 The proposition is as follows:

“The third proposition which in our submission is the complete answer to this case and which takes it beyond the inferences which flow from those first two propositions is that where damage is the result of an accumulation of doses, some of which are negligent and some of which are non-negligent, then so long as the negligently administered dose was not de minimus it was a material contributing cause to the ultimate result.”

414 I cannot accept the proposition or the submission that it provides the complete answer to this case without depending upon inferences as Mr Brereton conceded his earlier two submissions had done. I should explain why I hold this view.

415 Mr Brereton went first to E.M. Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434. In that case Fitzgerald AJA extensively reviewed the case law on the question of causation. Meagher JA, except as to an issue of apportionment, and Beazley JA agreed with Fitzgerald AJA.

416 There are some references within that review which, at first sight, appear to support Mr Brereton’s submission. However, upon examination that is not so as the Judge’s summation makes clear. He said at 473:

“As the cases referred to illustrate, issues with respect to causation can arise in a variety of circumstances and lead to different approaches. A plaintiff’s damage might probably result from a single cause, or some combination of possible causes, which might have occurred concurrently or sequentially, and some of which might be unidentifiable. All relevant circumstances, including an increase in the risk to the plaintiff from the defendant’s breach of duty and the character and sequence of events, must be considered in deciding whether a defendant’s breach of duty which is a possible cause of the plaintiff’s damage probably materially contributed to that damage. Circumstances are relevant for this purpose if they assist in establishing or strengthening a causal connection between the defendant’s breach of duty and the plaintiff’s damage according to expert opinion or by the application of logic, common sense or experience. Unusually, a conclusion that a defendant’s breach of duty materially contributed to a plaintiff’s damage might be rejected by reference to policy considerations or value judgments.

417 The proposition is in conflict with the passage from the judgment of Mason P in T C v The State of New South Wales which I set out at [261].

418 In particular, whilst the passage was directed to the question of formal reversal of proof, Mason P said at 58:

Bennett

419 That passage in my opinion has equal applicability to the proposition Mr Brereton advances.

420 Also relevant is the passage from the judgment of Spigelman CJ in Seltsam Pty Ltd v McGuinness at 278-280 quoted with approval by Mason P and set out above at the end of [262].

421 For convenience I repeat the following passage of Mason P’s judgment, which includes portion of the quotation:

Chappel v Hart

because

Batiste v State of Queensland

‘It remains the law that it is still necessary for a plaintiff to prove that a defendant’s conduct materially contributed to the sustaining of the injury.’

422 Mr Brereton relied upon Bonnington Castings Ltd v Wardlaw [1956] AC 613. Fitzgerald AJA summarised that case in Plane at 452 as follows:

Bonnington Castings Ltd v Wardlaw

Tubemakers

423 In Bonnington Castings Ltd v Wardlaw Lord Reid said at 620-623:

“In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.

…

It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.

…

424 Lord Keith of Avonholm said at 626:

“I think the natural inference is that had it not been for the cumulative effect the pursuer would not have developed pneumoconiosis when he did and might not have developed it at all. The inference, of course, would have been different if it could be shown that the pursuer could not have inhaled any particles given off from the swing grinding operations, or that the particles negligently released from the swing grinding operations were released at intervals so infrequent, or in quantities so insignificant, even if taken cumulatively, as to make it unreasonable to regard them as a material contributing cause of the pursuer’s disease. But that, in my opinion, the defenders are unable to show. On the whole evidence, I consider that the pursuer has discharged the onus that is upon him of showing that the defenders’ fault was a material contributing cause of his illness.”

425 The case establishes as Beazley JA, with whom Sheller JA and Sheppard AJA agreed, said in Wallaby Grip (Bae) Pty Limited (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 at 313:

“A plaintiff must show more than that it is possible that injury was caused by the defendant.”

426 The basis upon which a conclusion in favour of the plaintiff (pursuer) was reached was stated by Lord Bridge in Wilsher v Essex Area Health Authority [1988] 1 AC 1074 at 1086 as follows:

“Their Lordships concluded, however, from the evidence that the inhalation of dust to which the pursuer was exposed by the defenders’ breach of statutory duty had made a material contribution to his pneumoconiosis which was sufficient to discharge the onus on the pursuer of proving that his damage was caused by the defenders’ tort.”

427 In Wilsher Lord Bridge also referred to another dust case of cumulative effect in McGhee v National Coal Board [1973] 1 W.L.R. 1. He said at 1086:

“In McGhee v National Coal Board [1973] 1 W.L.R. 1 the pursuer worked in a brick kiln in hot and dusty conditions in which brick dust adhered to his sweaty skin. No breach of duty by his employers, the defenders, was established in respect of his working conditions. However, the employers were held to be at fault in failing to provide adequate washing facilities which resulted in the pursuer having to bicycle home after work with his body still caked in brick dust. The pursuer contracted dermatitis and the evidence that this was caused by the brick dust was accepted. Brick dust adhering to the skin was a recognised cause of industrial dermatitis and the provision of showers to remove it after work was a usual precaution to minimise the risk of the disease. The precise mechanism of causation of the disease, however, was not known and the furthest the doctors called for the pursuer were able to go was to say that the provision of showers would have materially reduced the risk of dermatitis. They were unable to say that it would probably have prevented the disease.

………

Bonnington Castings Ltd. V Wardlaw

McGhee v. National Coal Board

McGhee’s

428 After setting out a number of passages from the opinions Lord Bridge concluded:

McGhee v National Coal Board

429 I come later to a consideration of this conclusion in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.

430 In Plane Fitzgerald AJA dealt at some length with the case of Commonwealth v McLean (1996) 41 NSWLR 389. It is convenient to repeat the following passages from Plane at 452:

“In The Commonwealth v McLean (1996) 41 NSWLR 389, the principle that a finding that a defendant's breach of duty materially increased the risk to a plaintiff can in appropriate circumstances rationally support a conclusion that the defendant materially contributed to the plaintiff's injury was accepted even though any connection between the defendant's breach of duty and the plaintiff's damage was indirect. The plaintiff suffered post traumatic stress disorder consequent upon a collision between two vessels, the HMAS Melbourne, on which he was a seaman, and the HMAS Voyager. It was held that the defendant was liable to the plaintiff for his stress disorder, to which he had a psychiatric predisposition, because damage of that type to the plaintiff was reasonably foreseeable by the defendant (at 403, 404, 406). The plaintiff claimed that his stress disorder also caused an increase in his consumption of alcohol and cigarettes, which had caused his throat cancer. Although a jury verdict in favour of the plaintiff on this aspect of the case was set aside by this Court on appeal because the jury had been misdirected with respect to other issues (which included foreseeability and remoteness of damage), what was described as a ‘ Bonnington Castings v Wardlaw direction on causation ’ was upheld (at 407-411).

The critical circumstance in the dispute with respect to causation in The Commonwealth v McLean (supra) was that the plaintiff would have consumed alcohol and cigarettes even if the collision had not occurred and caused his stress disorder. The defence submission was that the plaintiff was accordingly at risk of throat cancer even if his stress disorder had not caused him to increase his consumption, and objection was taken to the trial judge's direction to the jury that ‘ ...where the defendant's breach of duty contributed to a potentially harmful situation, thereby increasing the risk of injury, you are entitled to find that the injury resulted from the defendant's breach of duty if the defendant's contribution was, in your judgment, significant.’

‘If the jury concluded that the plaintiff's excessive smoking and drinking were caused by his stress disorder and were involuntary, they were entitled to find, on Professor Tattersal's evidence, that his stress disorder had caused his throat cancer. The defendant's submission that the plaintiff might have contracted throat cancer in any event raised a question on which medical science provided no clear answer.

Some of the plaintiff's consumption was not caused by the tort because the "but for" test was not satisfied. However on the jury's findings a significant part of his total consumption would not have occurred "but for" the tort. It seems to us that the rule in Bonnigton Castings v Wardlaw ([1956] AC 613) and the related cases applies ... They supply a principle for deciding responsibility where injury results from a noxious substance or situation where only some of the exposure was caused by the tort.

...

431 The emphasised passage contrasts with the present matter in that here there is a good deal of evidence doing much more than suggesting that the appellant’s condition was wholly caused by the appropriately prescribed medication.

432 In this context it is to be born in mind that, whilst the effect of the corticosteroid is cumulative and dose related, it does not produce an injury which is “indivisible” and not dose related in the sense that once triggered the disease does not vary in severity according to the victim’s exposure history.

433 The evidence established that the extent of the injury is dose related which distinguished the present matter from a mesothelioma case even where it is accepted that the greater exposure to asbestos the greater likelihood that the disease will be triggered. (See Jane Stapleton Cause-in-Fact and the Scope of Liability for Consequences [2003] 119 LQR 388).

434 This circumstance, as well as others to which I shall refer, leaves the present case outside the modified approach to the proof of causation adopted in Fairchild.

435 Fairchild, which was not referred to in argument, was heard with two other cases all involving employees who had developed mesothelioma caused by exposure at work to asbestos dust. All of the employees had been exposed to asbestos dust during periods of employment with more than one employer. The Court of Appeal held that each employee failed because he could not establish, on the balance of probabilities, which period of exposure had caused the disease.

436 The House of Lords upheld the appeals, applying to a closely defined set of circumstances “a modified approach to proof of causation” which it was held was justified in such cases.

437 A feature of the case is that a majority of the House expressly departed from the view of McGhee’s case propounded by Lord Bridge as set out at [365] above. Lord Bingham of Cornhill said at 68:

McGhee

438 It is to be noted that Lord Hutton made the observation at 89:

McGhee

Birkholz v R J Gilbertson Pty Ltd

439 It is unnecessary to pursue the point for, as Stapleton pointed out at 398:

McGhee/Fairchild

440 In this case not all causes of risk were tortious and the context was not one of employer’s liability.

441 McGhee and Bonnington Castings Ltd v Wardlaw were not cases in which all causes of the risk were tortious; however, that was a requirement for the application of the principles enunciated in Fairchild Lord Bingham said at 68:

“I would in conclusion emphasise that my opinion is directed to cases in which each of the conditions specified in (1) – (6) of paragraph 2 above is satisfied and to no other case.”

442 Lord Rodger of Earlsferry said at 119:

McGhee

443 However, the other opinions did not support an enlargement beyond the circumstances of the three cases.

444 Lord Bingham did say at 68:

“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise.”

445 Having regard to the authorities to which I have earlier referred (and the way in which the case has been argued) it is not appropriate to approach this appeal as one that may be decided upon a development of the principles enunciated in Fairchild.

446 Having regard to my earlier expressed views and the rejection of Mr Brereton’s third proposition, I agree with Studdert J that the appellant did not establish, on the balance of probabilities, that the breaches of duty caused or materially contributed to the injury to the appellant’s spine.

Proposed Orders:

447 It should be noted that Counsel agreed that if there is a finding of liability in favour of the appellant on the basis of loss of a chance the matter should be sent back to the primary judge to assess the chance and assess the damages on the basis of the evidence at the trial.

448 For the above stated reasons in my opinion the following orders should be made:

(2) Judgment below be set aside.

(3) In lieu thereof, verdict for the appellant.

(4) Matter remitted to the primary judge to determine damages on the basis of the loss of a chance and conformably with the judgments of the Court. Should the primary judge be unable for any reason to hear the remitted matter it is to be heard by a judge nominated by the Chief Judge at Common Law.

(5) Defendant to have a certificate under the Suitors Fund Act if otherwise qualified.

(6) Respondent granted leave to amend Notice of Contention.

**********

Last Modified: 11/01/2004

Citations

Rufo v Hosking [2004] NSWCA 391

Most Recent Citation

Cases Citing This Decision

53

Tabet v Gett [2010] HCA 12

Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153

Cases Cited

23

Statutory Material Cited

0

Sellars v Adelaide Petroleum NL [1994] HCA 4

Astley v AusTrust Ltd [1999] HCA 6

Malec v JC Hutton Pty Ltd [1990] HCA 20

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CITATION:	Rufo v Hosking [2004] NSWCA 391
HEARING DATE(S):	20 May 2004
JUDGMENT DATE:	1 November 2004
JUDGMENT OF:	Hodgson JA at 1; Santow JA at 14; Campbell AJA at 56
DECISION:	Appeal allowed with costs.
CATCHWORDS:	TORT - Medical negligence - recoverability for loss of a less than 50% chance of avoiding spinal microfractures suffered in course of heavy-dosage treatment with corticosteroids against Lupus - breaches of duty of care by specialist paediatrician in substituting one corticosteroid for another so causing a heavier than the appropriate dosage and in failing to introduce a steroid sparer at the appropriate stage - more probable than not that even without these breaches microfractures would have occurred but appellant still lost a material chance that but for the negligence the fractures would not have occurred, or would not have occurred at the time or with their severity - comparison of all or nothing approach in causation and damages - causation issues - inapplicability to this situation of UK Fairchild approach to causation - relevance of expert evidence - difficulty of quantifying the lost chance - chance must be material and not speculative - relevance of possible pre-existing celiac condition in contributing to susceptibility to fractures and questions of evidentiary onus - observations on permissibility of loss of chance approach in medical negligence cases.
CASES CITED:	Bennett v Minister of Community Welfare (1992) 176 CLR 408 Betts v Whittingslowe (1945) 71 CLR 637 Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121 Bonnington Castings Ltd v Wardlow [1956] AC 613 Chaplin v Hicks [1911] 2 KB 786 Chappel v Hart (1998) 195 CLR 232 Commonwealth v McLean (1996) 41 NSWLR 389 Daniels v. Anderson (1995) 37 NSWLR 438 Diamond v Simpson (No 3) [2003] NSWCA 373 E.M. Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Gavalas v Singh [2001] 3 VR 404 Gregg v Scott [2002] EWCA civ 1471 Hotson v. East Berkshire Area Health Authority [1987] AC 750 Jorgenson v Vener, 616 NW2d 366 (SD SC, 2000) Laferrière v Lawson [1991] 1 SCR 541 Malec v. J.C. Hutton Pty. Ltd. (1990) 169 CLR 638 March v E & M H Stramare Pty Ltd (1991) 171 CLR McGhee v National Coal Board [1973] 1 W.L.R. 1 Millett v McMonagle [1970] AC 166 (HL) Naxakis v. Western General Hospital (1999) 197 CLR 269 Purkess v Crittenden (1965) 114 CLR 164 Roberts v Ohio Permanente Med Group, Inc, 668 NE 2d 480 (Ohio SC, 1996) Rogers v Whitaker (1992) 175 CLR 479 Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332 Seltsam Pty. Ltd. v. McGuiness (2000) 49 NSWLR 262 Shorey v PT Ltd (2003) 77 ALJR 1104 Sutherland Shire Council v Heyman (1984-5) 157 CLR 424 TC v The State of New South Wales & Ors [2001] NSWCA 380 The Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Tran v Lam NSWSC, 9 February 1995, unreported BC 9504451 Wallaby Grip (Bae) Pty Limited (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 Watts v Rake (1960) 108 CLR 158 Watts v Rake and Shorey v PT Ltd (2003) 77 ALJR 1104 Wilsher v Essex Area Health Authority [1988] AC 1074
PARTIES :	Michelle RUFO (Appellant) Dr C S HOSKING (Respondent)
FILE NUMBER(S):	CA 40125/03
COUNSEL:	P BRERETON, SC/ DR K SANT (Appellant) D HIGGS, QC/ J LONERGAN (Respondent)
SOLICITORS:	Kells the Lawyers (Appellant) Ebsworth & Ebsworth (Respondent)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20468/01
LOWER COURT JUDICIAL OFFICER :	Studdert J