Sturch v Willmott
[1995] QSC 65
•13 April 1995
IN THE SUPREME COURT
OF QUEENSLAND
BRISBANE
[Sturch v Willmott] Writ No. 1302 of 1994
BETWEEN:
ANNA CATHARINA STURCH
Plaintiff
AND:
JAMES A. WILLMOTT
Defendant
[D. Sturch v. Willmott] Writ No. 1617 of 1994
BETWEEN:
DAVID STURCH
Plaintiff
AND:
JAMES A. WILLMOTT
Defendant
REASONS FOR JUDGMENT - THOMAS J.
Delivered 13 April 1995
CATCHWORDS: NEGLIGENCE - medical negligence - failure to attempt diagnosis on complaint of rectal bleeding - duty of care - whether contributory negligence
DAMAGES - whether possibilities to be considered in respect of past fact - Malec v. Hutton and Sellars v. Adelaide Petroleum discussed - Whether Griffiths v. Kerkemeyer damages may be awarded after presumptive death of plaintiff - deduction of maintenance from future economic loss - husband's loss of consortium
Counsel:J.C. Williams QC with J.P. Kimmins for the plaintiff
J.J. Clifford QC with W. Campbell for the defendant
Solicitors:Taylors for the plaintiff
Flower & Hart for the defendant
Hearing Dates: 4, 5, 6 and 7 April 1995
IN THE SUPREME COURT
OF QUEENSLAND
BRISBANE
[Sturch v. Willmott] Writ No. 1302 of 1994
BETWEEN:
ANNA CATHARINA STURCH
Plaintiff
AND:
JAMES A. WILLMOTT
Defendant
[D. Sturch v. Willmott] Writ No. 1617 of 1994
BETWEEN:
DAVID STURCH
Plaintiff
AND:
JAMES A. WILLMOTT
Defendant
REASONS FOR JUDGMENT - THOMAS J.
Judgment delivered 13 April 1995
I N D E X
| LIABILITY | 2 |
| Background details | 2 |
| Events of 18 and 19 April 1991 | 3 |
| The following 12 months | 6 |
| Casual complaints | 7 |
| 23 March 1993 | 9 |
| April to September 1993 | 10 |
| Surgery in October 1993 | 11 |
| Post surgical history | 11 |
| Duty of care | 12 |
| Was the duty breached | 13 |
| Contributory negligence | 17 |
| DAMAGES | 19 |
| Loss of a chance: proof of past facts | 19 |
| Whether Griffith v. Kerkemeyer damages may be awarded after presumptive death | 24 |
| Pain, suffering and loss of amenities | 27 |
| Loss of expectation of life | 29 |
| Economic loss | 29 |
| Griffith v. Kerkemeyer damages | 32 |
| Special damages | 34 |
| Summary of damages | 35 |
| Interest | 35 |
| Judgment | 36 |
| HUSBAND'S CLAIM FOR LOSS OF CONSORTIUM | 36 |
Two actions have been brought by a husband and wife against the wife's medical practitioner. The actions were heard together and it is desirable that they both be dealt with in the same reasons for judgment.
The primary claim is brought by Mrs Sturch against her doctor (Dr Willmott) alleging medical negligence. The other claim is brought by Mr Sturch for damages for loss of consortium.
Mrs Sturch is a thirty-seven year old woman suffering from cancer who now has a very limited life-expectancy, probably a matter of months. I shall refer to her as the plaintiff and to Dr Willmott as the defendant.
LIABILITY
The facts relevant to liability took place between 18 April 1991 and 13 October 1993. On the first date the plaintiff suffered an episode of heavy rectal bleeding. On the latter, following a colonoscopy, she was finally diagnosed as suffering from a well-developed cancer of the colon.
Background details
The plaintiff married in 1980 and had three daughters born respectively in 1981, 1982 and 1984. She and her husband, who was a sales representative, lived at material times in the Bald Hills area. At the time of her first episode of bleeding per rectum she was a thirty-three year old mother of three children aged between nine and six.
The defendant obtained his medical qualifications from the University of Queensland in 1983 and was a resident medical officer at the Royal Brisbane Hospital until 1986. In 1987 he commenced private practice, with others, at the Strathpine Seven-Day Medical Centre and in the same year the plaintiff first went to that Centre. He saw her a number of times over the ensuing four years. The first consultation relevant to the present matter occurred on 19 April 1991.
The events of 18 and 19 April 1991
Whilst late-night shopping at Chermside Shopping Centre on 18 April the plaintiff felt a squelching sensation in her back passage followed by wetness. In due course she went to the toilet and found heavy bleeding from that area, sufficient to stain her underwear and eventually to permeate a handkerchief that she put inside her underwear. By the time she arrived home (9 p.m.) the car-seat was also stained. She spoke by telephone to a girlfriend who accompanied her to the Royal Brisbane Hospital that night. She passed further blood in a bedpan whilst at the hospital. She was examined at casualty by a female doctor (Dr Hunt). The hospital notes adequately record her complaint, including the detail of bright red blood in clots. It is further recorded that there was no history of haemorrhoids and that two days previously she had been prescribed Naprosyn for neck pain. On examination she was described as "well" and as "haemodynamically stable". In other words she was not shocked or pale or distressed as would be expected had there been a massive bleed from the stomach region. Blood-pressure, pulse and temperature were normal. Manual examination elicited no abnormality in the abdominal area, liver kidneys or spleen, and bowel sounds were normal. A digital examination of the rectum produced the statement "Empty rectum. No blood on glove. NAD". A vaginal examination, apparently both digitally and with a speculum, also revealed no detectable abnormality.
The doctor's impression was of a gastro-intestinal bleed now completely stopped. The following entries are included:
"? Causa
? Haemorrhoids
? ? ? Naprosyn (V. brisk bleed)."
I accept evidence which assists in interpreting the notations as indicating that no diagnosis was able to be made, but that the doctor considered that it could possibly be haemorrhoids, and possibly, but very unlikely to be attributable to the three Naprosyn tablets that the plaintiff had taken over the preceding few days.
Dr Hunt apparently discussed the matter with the registrar, Dr Coyne, and made a further note, "In view of fresh red blood needs further investigation. Refer to Gastro-intestinal Clinic for ? colonoscopy, ? sigmoidoscopy." There is no evidence (other than the plaintiff's) of what Dr Hunt advised the plaintiff.
Quite clearly there was no instrumental examination of the back passage, and the examination was confined, as the plaintiff described in evidence, to a gloved digital examination. I accept (again as the plaintiff said in evidence) that she was told by Dr Hunt that there was a possibility that the bleeding was due to the Naprosyn, and also that she was advised ". . either go and see your GP or come back through out-patients at the hospital and have it looked at". This is consistent with the hospital medical records.
The plaintiff decided to see her GP, and the following morning made an appointment to see the defendant.
I have no reason to think that any witness in this case has consciously misled the Court. In particular I consider that both the plaintiff and Dr Willmott are sincere persons who gave their evidence as they now recollect it. However there are a number of important points upon which they are at variance, and it is necessary for me to indicate the facts which I consider to be established. In doing this I have endeavoured to reconcile so far as this is possible the evidence of the plaintiff and the evidence of the defendant, and the medical notes made at the time by the defendant or by others. The defendant's are very brief, but as far as they go they are a helpful indication of what was said and done. However obviously a lot more was said and done than the notes record.
The first matter in the notes of the 19 April 1991 consultation is the comment "Better". I infer that the defendant initially assumed that his patient was visiting him in relation to the neck and shoulder complaint upon which she had consulted him a few days previously and for which he had prescribed Naprosyn. I accept that his initial question related to this and that he recorded her response. The following is his notation in relation to that consultation:"19/4/91 DrJW
Better
Fresh blood from back passage. Seen at RBH:- sick in the abdo today. Had full check up at RBH - no reason
O/E Still area of pain BP 135/85
® trapezius
Plan Refer to physio"
(The last three lines obviously revert to the neck/shoulder problem.)
The following findings are, I think, consistent as far as possible with the evidence that both parties have given. The plaintiff described the bleeding, mentioning that it was bright red fresh blood, that she had been to the hospital and that the lady doctor felt that it could possibly be the Naprosyn. The defendant said he did not think it would be the Naprosyn. He asked whether it could possibly have been her periods, and she apparently resented the implication that she might have confused the two bodily passages. The plaintiff also told him that she had had two bowel motions since her examination at the hospital, and that there was blood around the stool. The defendant probably did not ask if she was still bleeding but seems to have assumed that she had stopped bleeding. He performed no physical examination, either by palpation of relevant bodily organs or by any rectal examination.
In fact he did not form any opinion as to the cause of the bleeding. He now considers the circumstance that this patient was a young woman who was not in a high-risk group for cancer of this kind may have contributed to his inaction. In the event he did not apply his mind to the question of even a provisional diagnosis. He was perhaps distracted or preoccupied with the earlier matter of the neck and shoulder and by the circumstance that she had been to the hospital the night before. The fact remains however that the plaintiff consulted him in relation to this serious warning sign, and was given no advice, guidance or follow-up.
The defendant's evidence includes a statement of his belief that the plaintiff told him that the examination at the hospital included an instrument examination of her bowel but I do not accept that she said this. There had in fact been no instrumental examination, and there is no reason why she would tell her doctor that this had happened when it had not. Equally I am unable to accept the plaintiff's evidence that the defendant told her that he "felt it was piles". In fact the defendant did not form any opinion on this, or on any other possible cause, except to comment that he felt it was most unlikely that it was caused by the Naprosyn.
I also accept that the defendant told the plaintiff that if the bleeding did not "subside" within one or two weeks, she should come back and be reviewed. That was where the matter rested. Although a small amount of bleeding persisted over the next 48 hours, the bleeding then stopped.
The following 12 months
It is unlikely that any further significant symptoms of bleeding occurred until about a year later (April 1992). The history the plaintiff gave to the specialist to whom she was eventually referred in late September 1993 was an eighteen month history of bleeding per rectum. That does not mean that no bleeding occurred in the period between April 1991 and April 1992, but on balance it seems unlikely that any significant incident occurred during that period. I accept her evidence that she would occasionally see blood on the toilet-paper after bowel motions during that period, but no particular quantity is suggested and it is unlikely that the plaintiff became concerned about her condition until Easter of 1992 when the episodes became more frequent and more noticeable. She spoke to girlfriends about piles, and they also noticed blood on toilet paper from time to time. She attributed it to the same cause. No-one had warned her otherwise.
Casual complaints
There is a conflict of evidence as to whether the plaintiff, from time to time during visits to the defendant in relation to other ailments, or during visits for treatment of her daughters, mentioned "by the way" that she had been getting blood on the toilet-paper. She claims to have mentioned it on a number of occasions and that the only response from the defendant was that he felt it was piles. During these occasions (including consultations concerning the children) the plaintiff's chart or cards were in the doctor's folder. The defendant claims that if any significant complaint had been made, even "by the way", he would have noted it on the chart, and if necessary made it the subject of a further consultation. I am satisfied that if the plaintiff mentioned the blood on toilet-paper problem, she did not do so in a way which penetrated the doctor's consciousness. I am not satisfied that she presented such complaints in a way that called for the doctor to take notice of them. This is supported to some extent by the eighteen-month history later mentioned to Dr Lambrianidis, and to a slight extent by negative implication from a number of reports of medical consultations with other practitioners during a period of multiple examinations in relation to a motor-vehicle accident. These include a report of Dr Kazaluskas (a psychiatrist whom she attended on 11 May 1993) where at least the subject of her toilet habits was raised, and the doctor was informed only that she had some difficulty wiping her bottom with her left hand. There was also a consultation with Dr Price on 25 October 1991 for a pap smear during which she mentioned other problems such as insomnia, pain in the hand and weepiness but made no mention of any symptom of rectal bleeding. The evidence on the whole suggests that she was not particularly concerned about those symptoms until early 1993.
The motor-vehicle accident occurred on 30 July 1991, three months after the initial rectal bleeding episode. She suffered a serious crushing type injury to the right wrist which produced a permanent disability of between thirty and forty per-cent of the use of the right upper limb. This injury and its aftermath no doubt dominated her attention for a considerable time. A claim was brought in the District Court and was in due course settled. In the proceedings before me she made light of this injury, but of course it is in her interest to do so, and her attention is focussed upon her terminal illness. The main relevance of the motor-vehicle accident is its likely effect upon exercise of her future earning capacity. It may also have been a temporary distraction from her other bodily ailments, although of course such an injury, associated with a litigious claim, may also focus attention upon all problems, bodily and mental.
In September 1992 the plaintiff noticed an additional problem of flatulence associated with foul odour. Also her bowel motion started to become thinner and sometimes she felt hot and clammy whilst on the toilet. On 18 September 1992 she consulted the defendant with respect to three complaints, the first of which concerned her right hand, the second a mole on her neck and the third the offensive wind. Neither her affidavit (ex.20) nor her evidence-in-chief suggests that she mentioned any rectal bleeding in association with this complaint. The thrust of her evidence is that "once the wind started, the bleeding got progressively worse", but at that stage she assumed this was due to piles. The defendant's note concerning this part of the consultation is "3. Offensive wind. Regular. Rx charcoal." This is an indication that he asked about bowel motions and was told that they were regular and that he prescribed charcoal tablets. The plaintiff says that this was preceded by his asking her if she had been eating a lot of nuts lately.
From this time on however, matters seem to have seriously deteriorated. At a time which the plaintiff describes as "a little bit later on down the track", while sitting on the toilet she would suffer the clammy feeling previously mentioned and also become nauseous. She also noticed that when sitting on the toilet and passing wind blood would also be passed. Her affidavit suggests that she began to notice this particular symptom in about November or December 1992. On such occasions spots of blood were deposited "all over the bowl".
The evidence as a whole does not justify a finding that any mention of rectal bleeding was made during the consultation of 18 September 1992.
23 March 1993
Apart from one consultation on 16 February 1993 when the child Lisa was taken to the doctor, the plaintiff did not again visit the defendant until 23 March 1993. By this time the relevant problems had become quite marked, but her complaint to the doctor, so far as his medical notes record them, were focussed upon her emotional condition and her inability to sleep. The plaintiff's evidence is very clear and definite both in relation to her symptoms at this stage and in relation to her complaint of them to the defendant. I accept that she mentioned the additional symptoms, including nausea when sitting on the toilet and that she had been physically sick and had passed blood when she sat on the toilet that morning. She also mentioned her stressed state and her poor sleeping habits. The only relevant notation made by the defendant on that occasion was
"Emotional +++ MVA 2 yrs ago
Sleeping pretty poorly
AppetiteLightheaded
Dizzy"
He prescribed Amitryptilene and referred her to a psychiatrist. Plainly the defendant was concentrating upon the overall emotional state of the plaintiff. No note was made of the nausea associated with attempted bowel motion or of the passing of blood. He did not remember this consultation very clearly. Whatever the explanation, he missed or failed to give due weight to the patient's mention of these symptoms. I have no doubt that by this particular time the plaintiff's symptoms were fairly acute, and that they were a primary cause for her going to the doctor on this particular occasion. Those symptoms therefore remained uninvestigated for a further period.
April to September 1993
A month later she consulted one of the defendant's partners, but her complaints were in relation to her hand and a throat infection.
The next relevant consultation was 19 July 1993. On this occasion she complained of a persistent deep ache in the area of the right buttock. The defendant examined her and considered that it was probably a locally caused problem. The medical opinion which I accept, including that of Dr Stitz, is to the effect that this symptom was unlikely to have been produced by her cancer, and I do not consider that any question arises of misdiagnosis or of failure to relate that condition to any serious underlying condition. The same may be said in relation to a further similar complaint on 30 August 1993. That consultation also included complaints of a "lot of heart-burn". Prescriptions were given for this and there was further variation in the prescription of sedative medication.
On 17 September 1993 there was a further consultation in relation to indigestion, which led to a variation in prescription.
Finally, on 24 September 1993 both parties are agreed that she presented with a complaint about post-rectal bleeding. On this occasion the defendant conducted a digital examination. This time he referred her to a specialist (Dr Lambrianidis) for further investigation.
Surgery in October 1993
Dr Lambrianidis performed a colonoscopy which revealed that "at the recto sigmoid junction there was a large fungating carcinoma occupying fifty per-cent of one side of the bowel wall. The lesion obviously needs urgent surgical attention".
On 20 October 1993 the carcinoma was removed, measuring 62 mm in length and 45 mm in width. Microscopic examination produced a description of a moderately well differentiated adeno carcinoma infiltrating through the full thickness of the bowel wall and extending into the superficial subserosal fat, with extensive ulceration. No vascular or perineural infiltration was seen, and no metastases were seen in any of four lymph nodes that were sectioned. The tumour was considered to be clear of the margins of excision, which is to say that it was considered that it had all been obtained and removed. It was a B2 tumour according to Duke's classification.
Post surgical history
The plaintiff spent fifteen days in hospital in relation to that surgery, and a further six weeks at home recovering, upon which she commenced to perform her normal tasks again. For a time it seemed that a reasonable recovery had been effected, but after April 1994, progressively elevated readings of a carcino-embryonic antigen were noted, and by August 1994 the level was twice normal. A CT scan at that time demonstrated a five centimetre soft tissue in the left side of the pelvis, and further examination upon laparotomy in October 1994 showed some abnormalities to the left ovary and left of the rectum, but no evidence of recurrent tumour mass. The serum antigen level continued to rise, and finally in January 1995 a CT scan identified a large mass in the lower left side of the pelvis which, upon needle aspiration was found to be malignant. It is described by Dr Lambrianidis as the same tumour as that removed by him in October 1993. It is attached the major iliac blood-vessels.
The plaintiff's prognosis is poor. She is undergoing radiotherapy in the hope that it will shrink the tumour to the extent that it may be operable. Even successful surgery would not cure the cancer, but it would extend her period of survival. She could die at any moment if the tumour invades the adjacent blood-vessels. The prognosis is of a life-expectancy of twelve months from December 1994.
Duty of care
The defendant owed the plaintiff a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That is a single comprehensive duty (Rogers v. Whitaker (1992) 175 CLR 479, 489). A distinction is drawn between diagnosis and treatment on the one hand, and the provision of advice or information to a patient (ibid p.489). In the former area the prevailing professional opinion and practice at the time may have an influential and often decisive role to play. In the latter, the question does not depend so much upon medical standards or practice.
The present case is concerned with acts or omissions in relation to diagnosis and treatment. Accordingly the defendant falls to be judged by the standard to be expected from a practitioner of the class to which he belonged or held himself out to belong. A different level of skill may be demanded from a specialist than from a general practitioner, depending upon the subject matter of the point at issue. The standard of skill to be expected "is that of the ordinary skilled person exercising and professing to have that special skill", Rogers v. Whitaker above, pp.483, 487. That standard is not necessarily determined by the practice that even a responsible body of opinion in the relevant profession may support, although in the sphere of diagnosis and treatment evidence of this kind may be strongly persuasive of the proper standard. The principle in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582, which holds that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though some other doctors may adopt a different practice, is not always applied even in the area of diagnosis of treatment (Rogers p.487).
In the present case the defendant held himself out as a general practitioner. The standard of care he owed to his patients was that of the ordinary GP in Brisbane between 1991 and 1993 - no more and no less.
Was the duty breached?
A considerable body of evidence was led from medical practitioners, including both specialists and general practitioners. It shows a remarkably high level of consistency. I do not consider that any of the opinions expressed, when applied to the facts that have been found in this case, could produce a result otherwise than that the defendant failed in a number of respects to observe the required level of duty.
The defendant was probably distracted to some extent by the fact that the patient had been the previous night to the Royal Brisbane Hospital, but he simply failed to make any proper enquiry as to what had happened there. He had no reason to believe that she had been successfully treated or that any diagnosis had been made. There was no reason to believe that she was in the care of some other medical practitioner such that he (the defendant) was not being asked by the plaintiff for assistance. Indeed, she expressly took her problem to him and he regarded himself as having been consulted upon it. He noted the complaint but did not adequately investigate it.
There is no evidence to suggest that the defendant was side-tracked by, for example, the strong probability of a benign or non-threatening diagnosis. He does not suggest that the plaintiff mentioned haemorrhoids to him in any context, and he had no reason to think that they had been either excluded or confirmed. If for example he had reason to think, and actually thought, that she had haemorrhoids, then a possible line of defence (mentioned as an hypothesis by Dr Pincus) would need to be explored. Belief in a sufficiently satisfactory cause that adequately explains such bleeding might sometimes make it unnecessary to require invasive procedures to exclude a second alternative cause of the symptom. However, haemorrhoids just did not come into the equation. Their presence was not confirmed by anyone, the plaintiff had not been a sufferer, and the defendant had no reason to believe and did not actually believe this to be the explanation. At one point it was suggested that he had assumed that they had been excluded by the hospital examination, but if that is so, his position is worse because that would considerably increase the prospect that the bleeding was from a sinister or more serious cause, thereby enhancing the need for further investigation. I accept the defendant's evidence that he did not form any opinion at all as to the cause.
This means that he failed to form any opinion, provisional or otherwise, of any benign cause. He rightly rejected the Naprosyn tablets as an acceptable explanation. He agrees that the plaintiff told him that no reason had been found at the hospital. This also confirms the fact that there was no justification for his thinking that she was in someone else's hands in relation to the problem or that a resolution had been found. In these circumstances, to fail to consider the matter any further, to fail to make further investigations and to let the condition remain undiagnosed and untreated was to fail to provide his patient with the level of care that he owed to her.
On the defendant's own case the response was inadequate. His own notations of "fresh blood from back passage" and "sick in the abdomen today" demanded further enquiry. In the circumstances it was the defendant's duty to investigate the matter further and to take some steps with a view to locating the site of the bleeding. There is the clear preponderance of the medical evidence. There is a variation in medical opinion as to whether there is an absolute necessity to locate the site of rectal bleeding in all cases, or whether there are some exceptions. The points of exception mentioned by Dr David Pincus, himself a GP, are in my view sensible, but they are not applicable to the present circumstances. It must depend very much upon the condition and circumstances of the patient, who may be in advanced age or in poor condition, or to whom the invasive procedure of a sigmoidoscopy or a colonoscopy might represent on balance more risk than benefit. Another possible exception may occur when a probable cause has been found which is treatable, e.g. piles. In such cases unless there is a reason to suspect cancer, such as from family history or some other indication, it may be reasonable to treat the haemorrhoids without further investigation even though the bleeding may have another cause as well. However none of these situations fits the present case. The consensus of medical opinion is that bleeding from the rectum is always to be seriously regarded, and that generally the site of the bleed must be identified. Unless some other satisfactory cause is found, further investigation such as sigmoidoscopy or colonoscopy should ensue. This will normally be undertaken by the specialist to whom the general practitioner should refer the patient.
It may be noted that Dr Pincus, who was called on behalf of the defendant, considered that if (as I find to be the case) the doctor was told that the bleeding was brisk enough to cause blood to run down her leg, or the indications were of a substantial quantity of fresh blood, the doctor should have taken a full history, family history, examined her himself, found out from the hospital what they had found and thought, and ensured that the bleeding was investigated sufficiently to exclude any serious cause. I accept that view.
The defendant himself when giving evidence mentioned that his whole approach had altered since the present matter, and he described his current practices and attitudes of awareness of the need for full investigations and follow-up. In describing his current practices he prefaced some of his statements with the words "in hindsight". However the hindsight to which he referred was the bringing home to him an awareness of how badly matters can go wrong if adequate investigation is not made, rather than the attainment of special medical knowledge or practice of which he was unaware in 1991. It is really a case of elementary oversight of basic matters taught at medical school, and is a case of failing to apply knowledge that he already had. The defendant impressed me as a sincere and caring doctor and I do not doubt that he has searched his conscience very deeply in consequence of the tragic position of the plaintiff. His evidence is very close to a concession that his practices at that time, on reflection were unacceptable and that he will not make a similar mistake or omission again.
It is unnecessary to canvas the extensive medical evidence further, because it overwhelmingly suggests that the defendant did not do enough at the time in April 1991, and that this failure was contrary to accepted medical practice at the time. In particular he failed to take steps that would enable a diagnosis to be made; he failed to refer the plaintiff for specialist examination when a reasonably prudent general practitioner would have done so; and he failed to cause sufficient examination and testing to be made in relation to her condition. Similar findings apply in relation to the examination of 23 March 1993. These particulars are not exhaustive, but they contain the basic omissions that occurred contrary to the duty of care that was owed.
Without discussing the medical opinion further, I am prepared to indicate that I have found particularly helpful the medical opinions of Dr Lambrianidis, Dr Yates (a general practitioner), Dr D. Pincus (a general practitioner) and Dr R. Stitz. I do not imply that other medical practitioners have been rejected, but I attach primary importance to the above evidence.
I accordingly find that the defendant acted in breach of his duty in the particulars that have been mentioned.
Contributory negligence
The only particular persisted in on behalf of the defendant is that the plaintiff failed to report the occurrence and frequency of her bleeding to the defendant. The history is that she did sufficiently report the initial episode to him and that she left his rooms without any warning or advice that would cause her to be concerned about the problem. It is true that she was told that if it recurred in the next fortnight she should come back, but the bleeding cleared up within two days and that particular suggestion was not in the event helpful. It is not surprising that she discussed the matter with two female friends, each of whom suffered from haemorrhoids and who experienced occasional similar symptoms of finding blood on toilet paper. This was essentially the symptom that remained over the next twelve months and it cannot seriously be suggested that she failed to exercise reasonable care for her own health and safety by failing to seek further consultation over that period. The symptoms however became more noticeable as time progressed.
The question is whether in failing to make a further specific complaint to her doctor prior to March 1993 in a way that made it clear to him that she wanted his medical assistance upon the matter, amounted to an unreasonable failure to attend to her own needs or to protect her own health. A member of the public cannot blame a doctor for failing to guess that he or she has a problem, and there comes a time when failure to articulate an accurate complaint, failure to tell the truth to one's doctor, or undue delay in bringing forward a complaint may be held to have contributed to the eventual unsatisfactory result, and to justify a finding of contributory negligence or even of total responsibility.
This particular plaintiff had brought forward a relevant complaint in 1991, but the evidence suggests that she was not given any particular warning about it either by the doctor at the Royal Brisbane Hospital or by the defendant. This is likely to have contributed to an assumption that it was not something to be particularly worried about. It was only when her health generally started to decline as the bleeding became more and more pronounced that she finally, with inducement from her husband, made a clear complaint to her doctor of this particular problem and sought treatment for it.
I am not prepared to regard her failure to make an explicit and forthright complaint of these particular symptoms during the period between the two occasions when she did bring the matter forward as amounting to contributory negligence. She considered the problem to be piles and this was in the circumstances understandable. Dr Stitz accepted that it was not uncommon for a patient to accept post rectal bleeding as haemorrhoidal, particularly if the patient has been told that nothing in particular is causing the bleeding. There is no reason to think that the plaintiff regarded her symptoms as of particular significance between April 1991 and March 1993 to the extent that failure to report them should be regarded as unreasonable.
I accordingly decline to make any finding of contributory negligence.
DAMAGES
It is important to remember that the defendant did not cause the plaintiff to suffer from cancer. The consequences for which he is liable to pay damages are for the extent to which he deprived her of the chance of making a better recovery than is now the case. The evidence suggests that early diagnosis and treatment would have given her a good chance of a successful outcome. There are however no certainties, and the present case is a good example of one in which the prospect of some degree of trouble in any event must be brought into account.
Relevant additional facts and findings will be included in further discussion under the following heads of damage:
Pain suffering and loss of amenities
Loss of expectation of life
Economic loss
Griffiths v. Kirkemeyer damages (past and future)
Special damages including cost of medical and palliative treatment (past and future)
Mr Sturch's damages for loss of consortium
First however, it is necessary to deal with two legal issues which have been raised.
Loss of a chance: proof of past facts
The first legal issue arises in relation to the factual question whether the plaintiff's initial bleeding (on 19 April 1991) was caused by a benign polyp or by a growth that was already cancerous. No-one can answer that with certainty or even confidence.
The fact that the tumour (when removed) was "moderately well differentiated" suggests a moderate rate of growth, as distinct from a "well differentiated" tumour which is slower growing, or an anaplastic tumour which grows very quickly. The period of non-discovery is two-and-a-half years. In his oral evidence Dr Scarf suggested that she probably had an adenoma in the lower sigmoid area in April 1991, but taking this with his written report, it is not an opinion expressed with any great confidence. He observes however that even if she had a small mucosal tumour (which is classified as stage A1 according to Duke's classification), treatment at that time would have given her a survival expectation of ninety per-cent for a period of five years. The consensus of opinion, in more broad terms, not only from Dr Scarf, was to the effect that her likelihood of survival would have been "greatly enhanced" and that it would have made a "great difference" to favourable prognosis if appropriate treatment had been given at that time. The evidence permits a finding at a level of virtual certainty that the plaintiff was suffering from one or other of two conditions. The chances of it being non-cancerous were better than even, and for present purposes it could be regarded as probably of the order of sixty per-cent. In that event the prospect of successful operative intervention was extremely good, probably close to one hundred per-cent with no substantial adverse effect upon life-expectancy. On the other hand, if she already had a class A1 cancer, she had only a ninety per-cent survival chance with respect to the following five years. If she survived that period her further expectation was favourable, though still not risk free. That was still a situation that justified some optimism, but a notably greater risk factor would need to be taken into account in assessing what would have happened but for the defendant's omitted diagnosis and treatment.
Dr Lambrianidis was however more guarded on this issue. He considered that the plaintiff could have had either an adenoma or very early cancer in April 1991. In his view it was one or the other and no-one could say which was the more likely. However, whichever it was, her chances of survival would have been very much better. Dr Olsen regarded that possibility that the condition was already cancerous by April 1991 as an "outside possibility". On balance, the medical opinion tends to favour the view that in April 1991 the growth was probably pre-cancerous, that is to say not yet malignant, but the chance that it may already have been cancerous is a significant one and is not to be disregarded. Even if it was an early cancerous growth, the prospects of survival for a period of five years were very good.
The answer to this question underlies the extent to which damages should be discounted for the prospect of medical treatment, discomfort, difficulty in recovery and potential diminution of normal life-span in any event, given the circumstance that the plaintiff undoubtedly already had a serious medical problem when she first sought medical assistance in April 1991.
Counsel for the plaintiff submitted that the possibility that the growth was already carcinogenous in April 1991 should not be taken account of in the assessment of damage. His submission is that this is a "past fact", and that the Court must make findings in relation to all such facts on the balance of probabilities. Once it is found that the odds of it being a benign tumour are better than it being already cancerous, the submission proceeds that the former possibility must be treated as a certain fact. This proceeds from a reading of Malec v. J.C. Hutton Pty Ltd (1990) 169 CLR 638, 642-643, which draws a distinction between, on the one hand, events which have occurred, and on the other, future and hypothetical events. The passage relied on is:"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."
The proportional approach under which the Court assesses the degree of probability that an event would have occurred, or might occur, and adjusts the damages to reflect the degree of probability, is applicable to findings in respect of future or hypothetical events. It is questionable however whether the discussion in Malec at pp.642-3 is a comprehensive statement of the types of fact to which such an approach may be brought, or of the assessment of damages for loss of a chance.
The submission for the plaintiff is that although the evidence cannot say with certainty whether the plaintiff's condition on 19 April 1991 was non-cancerous or cancerous, it is more likely than not that it was non-cancerous; that this was a past fact, or something that had already occurred; and that therefore the occurrence of the event, that is to say her probable non-cancerous condition, is to be treated as certain.
In the area of assessment of damage, as distinct from a determination of liability to pay damages, there is more scope, and indeed a need, for giving effect to speculative possibilities. Where (as here) the exercise is itself a valuation of the loss of a chance, it is difficult to see any logical distinction between taking account of the uncertainty of successful cure and the uncertainty of the condition that would have had to be cured.
Further statements have been made in the High Court on the question of assessment of damages for loss of a chance, including in The Commonwealth of Australia v. Amann Aviation Pty Ltd (1991) 174 CLR 64, 118-126; and Sellars v. Adelaide Petroleum N.L. (1993-1994) 179 CLR 332, 355-356. In Amann Deane J observed that the subject required a pragmatic approach and noted the difficulty, adverted in Hadley v. Baxendale (1854) 9 Ex 341, [156 ER 145], that rules for assessing damages (in that case for breach of contract) are not rigid rules of universal application, but are "prima facie rules which may be displaced or modified whenever it is necessary to do so in order to achieve a result which provides reasonable compensation . . ." without imposing undue liability upon the other party. An example cited by his Honour at 118 is instructive:"If, for example, what the plaintiff has lost by reason of the defendant's repudiation or breach of contract is a less than 50 per cent but nonetheless real and valuable chance of winning some contest or prize, of being the successful tenderer for some commercial undertaking or of deriving some other advantage, in circumstances where a court can decide that a proportionate figure precisely or approximately reflects the chance of success but can do no more than speculate about whether, but for the defendant's wrongful act, the plaintiff would have actually won the contest, prize or tender or derived the advantage, it would affront justice for the court to hold that the plaintiff was entitled to no compensation at all for the lost chance of competing or striving or for the wasted expenditure which was incurred in obtaining or performing the contract. In such a case, considerations of justice require that the plaintiff be entitled to recover the value of the lost chance itself . . ."
The converse is equally valid.
In the present matter I am not dealing so much with a past fact as with the lost chance itself, which I must do my best to evaluate. It would be wrong, I think, to fail to take into account the ambit of uncertainty relating to the actual condition of the plaintiff at the relevant time when, with proper medical attention, she could have had the benefit of surgery. I do not understand the courts to observe a rigid distinction between past facts and future or hypothetical events when, as they do every day, they take into account the contingencies relating to a particular fact or state of affairs. The assessment of past economic loss for example is an assessment with respect to facts that have already occurred when the assessment is made, but contingencies of less than fifty per-cent probability are properly taken into account in diminishing or increasing the quantum of such damages.
The existence of a pre-existing condition is a relevant fact in assessing damages that a tortfeasor must pay when he is held responsible for changing that condition, or as in the present case, failing to do something which would have given the plaintiff a chance of improving the condition. A useful discussion of the relationship between pre-existing condition and the exercise of assessment of damage, to some extent anticipatory of Malec's case, appears in (1981) 90 Yale Law Journal 1353 (Causation, Valuation and Chance in Personal Injury Torts involving Pre-existing Conditions and Future Consequences, by Professor King at pp.1354, 1356, 1363-1364, 1368-1369, 1373, 1381 et seq, 1397).
The answer to the plaintiff's proposition probably lies in the further discussion of the High Court in Sellars v. Adelaide Petroleum above at 355. The Court was concerned with the assessment of damages for deprivation of a commercial opportunity. The appropriate assessment must be of "the prospects of success of that opportunity had it been pursued". The Court observed:". . . the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities."
(My underlining)
I reject the submission of counsel for the plaintiff which would urge me to shut my eyes to the substantial chance, perhaps of the order of forty per-cent, that the growth may already have been cancerous when the plaintiff first consulted the defendant. That possibility will not enable me to make any specific mathematical calculation, but it is a factor that I must take into account in discounting damages so as to take into account the level of problems that the plaintiff may have had to face even without any omission on the part of the defendant.
Whether Griffiths v. Kirkemeyer damages may be awarded after presumptive death of a plaintiff
The probability is that the plaintiff will not survive beyond December 1995. This is the median estimate. The question is whether any allowance can be made for Griffiths v. Kirkemeyer damages beyond that time. The nature of these damages up to the date of presumed death is the value of the care that will be provided to meet her needs, and also the value of the services which she would have provided to the children. For reasons later stated at p.33 I hold that a valuation of services of the latter kind may be included in a Griffiths v. Kirkemeyer assessment up to the date of presumed death, notwithstanding the submission that such damages are not properly assessable under this head.
Damages of this kind are to compensate the plaintiff's loss occasioned by the tort, and this is linked to the plaintiff's need for assistance. The approach so far taken by the courts is to consider the value of the services that are required to satisfy the plaintiff's need (Van Gervan v. Fenton (1992) 175 CLR 327, 338). Prima facie one would think that the plaintiff's need for such services ceases with her death. That is certainly so with respect to her own personal needs, but the argument is that the need of the children for such services will continue, and that the plaintiff suffers loss through deprivation of the capacity to continue to provide those services.
Counsel for the plaintiff submits that the prevailing view that Griffith v. Kirkemeyer damages are awarded in respect of replacement of a need is incorrect. He submits that in truth such damages are awarded for the loss of a capacity. If this head of damages can be so viewed, he submits that its loss can be compensated for a period after presumed death just as the loss of her earning capacity may be assessed in a case where the tortfeasor reduces the plaintiff's expectation of life.
In support of the desirability of permitting such an assessment to be made, it was submitted that the bringing of the present action will undoubtedly deprive the plaintiff's dependent children of any right to bring an action for loss of her services. Counsel referred to Pickett v. British Rail Engineering Ltd [1980] AC 136 and to s.12C of the Common Law Practice Act 1867, but I do not find these references helpful. I presume the reference intended was to s.12. I have not been able to verify this submission, and there is cause to doubt it (Harding v. Lithgow Corporation (1937) 57 CLR 186, 191). However for the purposes of considering the argument I shall assume this premise to be correctly stated. The submission proceeds that an anomaly arises similar to that noted by Taylor J in Skelton v. Collins (1965-1966) 115 CLR 94, 113-121. Assuming the validity of the premise, there is some force in this submission, as it would seem that damages similar to those that the plaintiff seeks to recover by this means would have been claimable by her dependents (Nguyen v. Nguyen (1989-1990) 169 CLR 245). If the bringing of this action, in which such damages cannot be recovered, means that the right of others to recover such damages is lost, then the system may be thought less than perfect. That however is not to say that the problem is to be cured by creating an artificial extension to the principle under which Griffith v. Kirkemeyer damages are granted. If remedy is needed, it may be more appropriate to reopen the right of dependents to bring such claims. Alternatively it may be that in a broad social sense the family is benefited by the assessment of damages in favour of the primary plaintiff, as it includes damages for economic loss beyond death (Skelton v. Collins above), and that overall the present system provides adequate although not perfect compensation. Much more could be said, both ways, but my duty as a judge of first instance is to apply law that seems to be reasonably well settled.
Whatever the ideal solution may be, I cannot, with intellectual honesty, convert comprehensive statements in the High Court as to the principles upon which Griffith v. Kirkemeyer claims are based, namely the plaintiff's need for such services, as meaning something quite different. In principle I am asked to convert it into a claim for compensation for loss of a capacity. Legislation would be necessary in my view if the system is to be re-moulded to provide for damages of this kind.
A submission that such damages are allowable after the death of the care-giver was rejected by Demack J in Locher v. Locher & Anor No. 102 of 1994, 22 December 1994. In that case the submission was that there was a sufficient degree of proximity to allow recovery of such loss based upon a father's legal obligation to provide for the infant children, relying upon Caltex Oil (Australia) Pty Ltd v. The Dredge Willemstad (1976) 136 CLR 529. That submission was, in my respectful view, rightly rejected by his Honour.
In the present state of the authorities, I consider that I should also reject the submission, although a different argument was mounted in the present case.
Accordingly the Griffith v. Kirkemeyer damages will be assessed in relation to events which have occurred between the date of the negligence and the date of presumed death of the plaintiff. I shall however assess such damages in any event so that they may be included if it is determined that they ought to be included.
Pain, suffering and loss of amenities
Until at least mid-1992 the plaintiff had an active family life and the family activities included four-wheel driving, camping, dinners and contact with friends. The effects of the non-treatment between April 1991 and mid-1992 are not very extensive, and for practical purposes the effects of the defendant's negligence are limited to increasing discomfort and perhaps a general gradual decline in health from that time on. However her lifestyle continued without substantial change. Her health obviously started to trouble her during 1993 and she endured recurring discomfort and sickness until her condition was finally diagnosed in October 1993. Since then she has had eighteen months of distress, anxiety, medical treatment, deferred hope, and eventually, in January 1995, the final devastating news of a non-operable cancerous recurrence. Her expectation of life is said to be twelve months from December 1994, that is to say another eight months.
The damages under this head must be limited to the period April 1991 to December 1995.
The plaintiff is fully aware of her loss and deprivation and this must be reflected in the award. The evidence does not suggest continued racking pain, or a probability of it, but she has been subjected to operative treatments and faces the prospect of a further operation or operations. Despite this, I think that her greatest distress is the limitation of her ability to participate in familiar activities with her family and the knowledge of the coming total loss of these experiences.
It is necessary however to maintain a reasonable consistency between awards of damages. The level of damages under this particular head vary considerably from state to state, but in this jurisdiction no award under this head has ever exceeded $200,000. If a comparison is made with say a young plaintiff who is rendered quadriplegic and who undergoes severe daily pain for the rest of his or her life (perhaps over fifty years) and who suffers an almost total deprivation of physical capacities for the rest of his or her life, some proportionality must be seen in the present assessment which is essentially for intense mental suffering and intermittent physical suffering for a period of less than three years. Some account must also be taken of the fact that the plaintiff may in any event have been required to undergo surgery, and at the very least, colonoscopy.
The plaintiff has had thirty-five days in hospital, three operations, one week's chemotherapy and approximately sixteen radium therapy treatments. She will undergo radiotherapy a further fourteen times before an assessment is made whether further operations are justified. She is likely in any event to undergo some further surgery.
In Locher v. Locher above, which bears many similarities to the present matter, Demack J assessed damages under this head at $30,000. Counsel for the plaintiff submitted that a component for loss of expectation of life should be included under this head, but I prefer to make a separate assessment for that aspect.
I assess damages under this head at $40,000, of which $20,000 should be attributed to pre-trial suffering.
Loss of expectation of life
The authorities require this assessment to be made without adversion to personal distress or subjective factors. It is sometimes described as an objective or conventional assessment. In Agius v. Nominal Defendant (3534 of 1989, 30 March 1995 per Williams J), $3000 was assessed in favour of an eighteen year old male who was rendered tetraplegic and his life was curtailed by some ten or fifteen years. In Locher's case Demack J assessed $6000 under this head. I note that a somewhat higher range seems to pertain in New South Wales decisions (cf Sullivan v. Micallef [1994] ATR p.61, 787). I shall assess these damages at $7500.
Economic loss
The plaintiff was educated to grade ten and before her marriage worked as a clerk for the Department of Irrigation and Water Supply, and for Myers and the Royal Brisbane Hospital. However since her marriage the plaintiff has not exercised her earning capacity to any great extent. In November 1985 and again in 1990 she worked for a hypermarket as a check-out operator for periods of twelve months and four months respectively, on a part-time basis.
The plaintiff gave evidence that she was keen to get out of the house and that she intended to seek part-time work - nothing more than four hours a day - for five days a week. She conceded that it would be a problem to go back to typing, but hoped to be able to obtain check-out work. She probably would not have been prepared to sacrifice holiday time in the interests of work, as she would have insisted upon being with the family during such periods.
No evidence was given of the availability of such work, particularly if limited to the period of school hours during which it may be thought that others including similar-minded mothers would be competing for the opportunity.
It must also be acknowledged that the plaintiff had sustained a significant injury to her right arm, and although she considered that check-out implements would be able to be managed by her, there is a risk that repetitious work of this kind would come against her. The injury to her right wrist was certainly not minor. Additionally, her medical history, and the appraisal of her doctors (including Dr Lambrianidis) suggests that she suffered stress without the additional burdens that would be assumed by adding four hours per day to her work-load. A significant level of stress disorder was opined by Dr Kazaluskas (a psychiatrist) who did not think she was likely to be free of psychological problems at least until the children left home. This should perhaps he discounted on the basis of forensic enthusiasm (it was prepared for the purposes of her other personal injuries claim) but it cannot be entirely left out of the picture. The plaintiff's capacity to undertake, obtain and sustain such work is not satisfactorily established, though I have no doubt that she would have sought and retained work from time to time.
When all factors are considered, it would be unrealistic to suppose that the plaintiff was on the verge of a return to work for twenty hours per week for a substantial proportion of the rest of her life. She retained an earning capacity, and the indications are that it would have been exercised from time to time, but it was unlikely to have been extensively maintained.
This assessment needs to be made with respect to three separate periods, and different considerations apply to each.(a)Pre-trial economic loss.
The plaintiff's statement of loss and damage asserts that she would have commenced work on or about 1 January 1995. Her evidence suggests that she would have attempted to do so earlier than this. Whatever approach is taken, only a short period of work was in prospect up to the present date. Noting that her maximum earning capacity was $200 net per week, $5000 will be assessed.
(b)Future lost earnings up to date of presumptive death.
Assuming that three or four months would have been worked out of the following eight, this would call for an assessment of approximately $3000.
(c)The lost years.
According to the authorities (Skelton v. Collins (1966) 115 CLR 94, 122, Sharman v. Evans (1977) 138 CLR 563, 579) an assessment may be made in respect of the lost earning capacity of a plaintiff whose death is accelerated by a tortfeasor, but a deduction is required in respect of the costs of the plaintiff's own maintenance and support during those lost years. This is necessarily done on a fairly arbitrary basis.
The evidence of relevant costs of maintenance, on current values, would justify a finding that the personal maintenance costs of the plaintiff should be rated at somewhere between $70 and $100 per week. On the footing that she was able to be employed five days a week, four hours a day, for fifty per-cent of the time (which is on the higher side of what I regard as probable) she would have contributed to the family finances and perhaps her share of the overall family expenditure would have been at the higher rather than at the lower end of the stated range. I would regard a figure of $90 per week as reasonable for the maintenance deduction.
On the above footing her net future earnings, on current values, would have averaged no more than $100 per week, which barely exceeds the maintenance figure. As I have indicated that this is on the upper side of what I regard as the probability, the question arises whether a positive assessment of damages ought to be made at all in this case with respect to the lost years. It is a case where the lost future earning capacity is very close to the maintenance figure. However I propose to apply the premises that have been stated and to make an assessment based upon $10 per week for a period of fourteen years. This gives the plaintiff the maximum time stated by her, as she intended to cease work when her husband retired as a salesman (at age sixty-five in fourteen years time). This assessment comes to $5290.
Griffiths v. Kirkemeyer damages
It has already been necessary for Mr Sturch to provide considerable assistance and care to the plaintiff as a result of her treatments in hospital and recovery periods thereafter. The parties are not far apart in their submissions on this question, and the main variation depends upon whether one assesses according to the hours stated by the plaintiff or by Mr Sturch (see Exs.13 and 22). It seems to me that $10,500 is an appropriate sum in respect of past care.
The need for future care will probably accelerate over the coming eight months. It is likely that the plaintiff will undergo a further operation, at least for a permanent colostomy. It is not yet known whether radiotherapy will achieve a sufficient reduction to justify an operation to attempt removal of the tumour. The possibility of further operations is endless, including potential removal of the uterus, and operation upon the liver or any other organ which might become affected. Dr Lambrianidis says it is likely that she already has cancer somewhere else, as it has probably metastasised in another part of the body. He rightly asked, "Where do you stop?". On the present state of the evidence it is almost certain that at least one operation will take place, but unlikely that there will be more than two. If the condition worsens as is feared, the terminal stage will be handled by palliative care in hospital, which could occupy a few months or could be brief.
Counsel for the defendant submitted that this head of damage should be limited to the personal needs of the plaintiff for her own care, and that it should not be increased by supplementing or replacing the care that she would otherwise have provided to her children. I reject that submission, as the balance of authority suggests that assessments of this type of damage are capable of including the replacement of services which a mother or father supplies to his or her children as a matter of course. The cases include Waters v. Mussig [1986] 1 Qd.R. 224, 225; Hodges v. Frost (1984) 53 ALR 373; Burnicle v. Cutellia (1982) 2 NSWLR 26; Nguyen v. Nguyen (1990) 169 CLR 245; and Van Gervan v. Fenton (1992) 175 CLR 327. It is possible that the reasoning in Mussig does not survive the analysis in Nguyen and Van Gervan, but I would not be disposed to limit the damages in the manner intended, at least during the lifetime of the plaintiff.
Mr Sturch has shown a very conscientious intention of filling the gap, and it is reasonable to allow the cost over seven months of the eight months in question at eight hours per day at $9.50 per hour, namely $18,240.
For reasons earlier expressed, no allowance will be made with respect to the period after presumed death. However for the benefit of any court of appeal which may consider that such damages are allowable, having regard to the age of the children, and the prospect that as they grow older they will not all expect their father to perform all household services, I would project a diminishing level of services over a period of thirteen years ranging downwards from eight hours to two hours per day. $300 per week for eleven years, applying the 5% actuarial tables would come to $133,200. This would however have to be discounted for contingencies such as remarriage.
If an assessment were to be made in this respect I should assess further damages at $90,000.
Special damages
Chemotherapy charges are established at $2160. It is agreed that Medicare outlays and expenses incurred at Redcliffe Hospital come to $17,795.70. However it is established that the cost of necessary investigation and operation to have cured the condition which she undoubtedly had would in any event have required expenditure of $3500. Counsel submitted that it would be convenient to discount the last two items by reference to this factor. Accordingly $14,300 will be allowed with respect to those items.
A further claim was contained in the outline of submissions of plaintiff's counsel for palliative care rendered by Mrs Lambrianidis by telephone and by Blue Nurses. This seems to be an afterthought based upon Griffiths v. Kirkemeyer, but in the absence of submissions to the contrary I shall allow it at $150.
It is extremely difficult to assess future medical and palliative costs, particularly as so many outcomes are possible. The probabilities are that the Redcliffe Hospital, which she has so far used, will be the site of any further operative or palliative treatment. The charges there, for relevant purposes in assessing damages are $432 per day. Assuming that a colostomy and a laparotomy are performed the expenses attributable to medical practitioners would be a little over $2000, and fourteen days in hospital would cost a little over $6000. Other possible requirements include physiotherapy, nerve block procedure, a CT scan and others. Such procedures may or may not eventuate. A further $2500 should be allowed to cover them. Terminal palliative care for a period of five weeks would result in a cost of a little over $15,000. It is of course possible that there will be multiple serious operations, but this is improbable. Some allowance should however be made for the possibility.
Future medical costs will be assessed at $30,000.
Summary of damages awarded
| Damages for pain, suffering and loss of amenities | $40,000 |
| Loss of expectation of life | $ 7,500 |
| Economic loss | |
| - Past | $ 5,000 |
| - Until December 1995 | $ 3,000 |
| - Beyond December 1995 | $ 5,290 |
| Griffiths v. Kirkemeyer damages | |
| - Past | $10,500 |
| - Until December 1995 | $18,240 |
| - Beyond December 1995 | - |
| Special damages | |
| - Past | $16,610 |
| - Future | $30,000 |
Interest
Interest should be allowed on $20,000 of the award for pain, suffering and loss of amenities for two and three-quarter years at two per-cent - $1100. It should also be allowed on the damages for past economic loss, namely $5,000, for one year at six per-cent - $300.
There should also be an allowance on the past loss assessed under the principles of Griffith v. Kirkemeyer at two per-cent for eighteen months - $315.
Judgment
There will be judgment for the plaintiff Anna Catharina Sturch in Action 1302 of 1994 for $137,855 with costs to be taxed.
THE HUSBAND'S CLAIM FOR LOSS OF CONSORTIUM
The authorities plainly preclude any award of damages for the period after the wife's death (Toohey v. Hollier (1955) 92 CLR 618, 627; Swan v. Williams (Demolition) Pty Ltd (1987) 9 NSWLR 172; Harris v. Grigg [1988] 1 Qd.R 514. The cause of action is a relic of a bygone age and attitudes. The damages are for loss following the greatly reduced capacity of his wife to perform household duties, manage the household affairs and give him her support and assistance. They do not include any element of mental distress or diminished happiness on his part.
It would have been possible to include in this award the reasonable cost of replacement of his wife's services (Johnson v. Nationwide Field Catering Pty Ltd [1992] 2 Qd.R 494), but this has already been included in the wife's claim. Double recovery is not permitted (ibid). Counsel for the plaintiff preferred the assessment to be included in the wife's claim and I have acceded to that request.
This plaintiff's loss has been considerable and he has, for substantial periods, had to attempt to replace the considerable contribution that his wife made to running the household and bringing up the family. Although the period is and will be brief, the loss will be considerable during that period.
Consistently with the approach of Demack J in Locher above, $10,000 will be awarded with respect to this claim. Interest will be allowed for two years at two per-cent - $400. There will be judgment for the plaintiff David Sturch in Action 1617 of 1994 for $10,400 with costs to be taxed.
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