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

No judgment structure available for this case.

New South Wales

Court of Appeal

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

HEARING DATE(S): Thursday 4 June 2009, Wednesday 24 June 2009

JUDGMENT DATE:
24 July 2009

JUDGMENT OF: Beazley JA at 1; Giles JA at 19; Ipp JA at 52

DECISION: (a) The appeal is upheld.
(b) The orders made by Hoeben J are set aside.
(c) The matter is remitted to the Common Law Division of the Supreme Court for a re-trial on the issue of negligence.
(d) The respondent pay the appellant's costs of appeal.
(e) The respondent be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled.
(f) The costs of the trial before Hoeben J be costs in the cause.
(g) The cross-appeal is dismissed with costs.

CATCHWORDS: EVIDENCE - admissibility and relevancy - opinion evidence - expert evidence - whether trial judge erred in preferring the opinion of one expert to another where the former had greater expertise - whether trial judge impermissibly took into account own opinions on issues requiring expert testimony - effect of rules of court on admissibility of expert evidence and expert opinion evidence - whether evidence of expert materially interested in the proceedings is admissible. - CAUSATION - material increase in the risk - whether risk created by the tortfeasor came home - use of epidemiological and statistical evidence.

LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Evidence Act 1995
Supreme Court Rules 1970
Suitors' Fund Act 1951
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 558
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
ASIC v Rich [2005] NSWSC 149
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Collins Thomson v Clayton [2002] NSWSC 366
Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990
Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
EMI Australia Ltd v BES [1970] 2 NSWR 238
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190
Festa v R [2001] HCA 72; (2001) 208 CLR 593
FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33
Field v Leeds CC (2000) 32 HLR 618
Flavel v South Australia [2007] SASC 50; (2007) 96 SASR 505
Flounders v Millar [2007] NSWCA 238
Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162
Gett v Tabet [2009] NSWCA 76
In Re JS (a minor) [1980] 1 All ER 1061
James Hardie & Co v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Kirch Communication Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485
Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Liverpool Roman Catholic Archdiocesen Trustees Inc v Goldberg (No 2) [2001] 1 WLR 2337
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Myers v Elman [1940] AC 282
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68
National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 1) [1995] 1 Lloyd's Rep 455
Payne v Crawford (1992) 3 Tas R 360
Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd’s Rep 379
R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions [2002] EWLA Civ 932 (No 2) [2003] QB 381
R v Mitchell (1997) 130 ACTR 48
Roads & Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
Rondel v Worsley [1969] 1 AC 191
Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678
Saunders v Adderley [1999] 1 WLR 884
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Sherman v Nymboida Collieries Pty Ltd [1963] HCA 63; (1963) 109 CLR 580
State Government Insurance Commission v Laube (1984) 37 SASR 31
Strinic v Singh [2009] NSWCA 15
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Weal v Bottom (1966) 40 ALJR 436
Whitehouse v Jordan [1981] 1 WLR 246
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221

TEXTS CITED: Cross on Evidence (loose-leaf), Lexis Nexis Au

PARTIES: Sydney South West Area Health Service (Appellant)
Kristy Michelle Stamoulis (Respondent)

FILE NUMBER(S): CA 40401/08

COUNSEL: P Menzies QC; C F Hodgson (Appellant)
B M J Toomey QC; D R J Toomey (Respondent)

SOLICITORS: I V Knight, Crown Solicitor's Office (Appellant)
McLaughlin & Riordan Solicitors (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20239/08

LOWER COURT JUDICIAL OFFICER: Hoeben J

LOWER COURT DATE OF DECISION: 29 October 2008

LOWER COURT MEDIUM NEUTRAL CITATION: O'Gorman v Sydney South West Area Health Service [2008] NSWSC 1127

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40401/08
SC 20239/08

BEAZLEY JA
GILES JA
IPP JA
24 JULY 2009

Sydney South West Area Health Service v Kristy Michelle Stamoulis

Headnote

FACTS

The appellant implements a State and Federal Government funded program that provides free breast screening mammograms. “BreastScreen NSW Sydney South West” (“BreastScreen”) is one of the local services operated by the appellant. The respondent is the legal representative of the estate of the late Christine Ann O’Gorman. During her lifetime, Mrs O’Gorman brought proceedings against the appellant for damages for negligence. Mrs O’Gorman’s claim arose out of a mammogram performed on her by BreastScreen on 23 February 2006.

On 2 and 3 March 2006, two radiologists (Drs Van Rooijen and Varnava) acting on behalf of BreastScreen, examined Mrs O’Gorman’s mammogram and considered that it did not indicate anything untoward and did not recommend any further investigation. Following that mammogram, Mrs O’Gorman took no steps to investigate the possible existence of a cancer in her breast until 17 January 2007, when BreastScreen carried out a further mammogram. She was then diagnosed with having a carcinoma of the left breast. The carcinoma subsequently metastasised into Mrs O’Gorman’s lungs and brain. After the trial, but before the hearing of the appeal, Mrs O’Gorman died.

At trial, Mrs O’Gorman contended that her 2006 mammogram displayed suspicious signs of the presence of a malignant mass in her left breast. Mrs O’Gorman’s case alleged that the two radiologists were negligent in failing to recall her for further investigation and that this caused the metastasised tumours from which, at the time of the trial, Mrs O’Gorman was suffering.

The trial judge, Hoeben J found in favour of Mrs O’Gorman. His Honour assessed Mrs O’Gorman’s damages in the sum of $405,990.15 and granted judgment in her favour against the appellant in this amount. On appeal, the appellant challenged the trial judge’s findings as to negligence and causation. The respondent cross-appealed on the assessment of damages.

HELD allowing the appeal, ordering a re-trial on the issue of negligence and dismissing the cross-appeal

Causation

Per Ipp JA (Beazley and Giles JJA agreeing)

1. A mere material increase in the risk of injury followed by the eventuation of the risk in question is insufficient to establish causation. The plaintiff must establish that it was probable that the risk created by the tortfeasor came home.

Flounders v Millar [2007] NSWCA 238 applied
Gett v Tabet [2009] NSWCA 76 considered
Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 considered
Roads & Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 referred to
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 referred to
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 referred to
TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 referred to

2. There are dangers in applying evidence that tends to quantify possibilities mathematically. There are also dangers in applying epidemiological or statistical evidence in a mechanical way. It is overstating the position to say that, as an absolute proposition, the statistical fact that a particular proposition is true of the majority of persons cannot of itself amount to legal proof on the balance of probabilities that the proposition is true of any given individual. The matter is essentially one of degree.

State Government Insurance Commission v Laube (1984) 37 SASR 31 considered
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 referred to
Re JS (a minor) [1980] 1 All ER 1061 referred to

3. Evidence of epidemiological studies is circumstantial evidence, which may, alone, or in combination with other evidence, establish causation in a specific case. The fact that experts do not infer causation on a balance of probabilities does not mean that a court may not. A finding of causal connection may be made even when the expert evidence does not rise above the possible; the question is always whether the evidence as a whole establishes causation on a balance of probabilities.

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 applied
Jones v Sutherland Shire Council [1979] 2 NSWLR 206 considered
Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 considered

4. In this case there was a strong possibility that, had the radiologists detected the tumour, it would not have metastasised. The increased risk to Mrs O’Gorman as an individual made it more likely that the tumour would metastasise and the risk was increased to an extent that was not negligible. This evidence is significant and is sufficient to tip the scales from that of strong possibility to a finding that, on a balance of probabilities, the failure to detect the tumour led to the metastasis.

Gett v Tabet [2009] NSWCA 76 distinguished

Expert evidence

Per Ipp JA (Beazley and Giles JJA agreeing)

1. It was a matter for the trial judge to determine the differences in opinion between competing experts and to determine what weight should be attributed to their expertise, qualifications and experience. There was no substance in the argument that the trial judge should have preferred the opinion of expert because his qualifications, in some way, were greater than those of another.

2. The trial judge did not offend the principles informing judicial fact finding and the receipt and interpretation of expert evidence. In particular, the trial judge did not impermissibly take into account his own opinions requiring expert testimony.

Strinic v Singh [2009] NSWCA 15 referred to

3. Although the effect of court rules is that expert witnesses owe a duty to the court, the content of that duty, and the powers of the court in enforcing that duty, are yet to be determined finally. The rules impose more stringent duties on expert witnesses than did the common law. The rules do not, however, render inadmissible expert evidence of witnesses who have an interest in the proceedings.

National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 1) [1993] 2 Lloyd's Rep 68 considered
FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 referred to

4. The evidence of an expert is not inadmissible merely because he or she is materially interested in the proceedings. Such matters go to weight and not admissibility. The trial judge erred in deciding that the evidence of Drs Van Rooijen and Varnava was inadmissible on this basis.

FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 referred to
Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162 referred to
Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281 referred to
Field v Leeds CC (2000) 32 HLR 618; [1999] CPLR 833 referred to

5. In all the circumstances, Dr Varnava’s disallowed evidence had the capacity to bring about a different result in the case.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40401/08
SC 20239/08

BEAZLEY JA
GILES JA
IPP JA
24 JULY 2009

Sydney South West Area Health Service v Kristy Michelle Stamoulis

Judgment

1 BEAZLEY JA: I have had the benefit of reading in draft the judgments of Giles JA and Ipp JA. I agree that the appeal should be allowed for the reasons given by Ipp JA. I also agree substantially with the reasons of Giles JA. I wish only to make the following brief additional comments.

2 The first relates to the evidence of Professors Levi and Tattersall. At trial, the appellant accepted that the evidence of these two doctors related to the statistical chance that Mrs O’Gorman had of developing metastasised tumours. His Honour’s finding in respect of their evidence was made on that basis. The appellant contended on appeal that their evidence was evidence of the statistical likelihood of a person with breast cancer developing metastasised tumours and was not evidence that related to the individual case of the respondent.

3 Giles JA and Ipp JA have expressed different views as to whether the appellant should now be permitted to take a different stance in respect of this evidence than was taken at trial. Overall, I am inclined to agree with Ipp JA that the appellant should not now be permitted to argue this issue differently from the trial.

4 The appellant conducted its case at trial on the basis that the decision in Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 was good law and sought to have damages assessed on the basis of a loss of a chance, should it be found liable in negligence. In those circumstances, it suited its forensic purposes to treat the evidence as being directed to Mrs O’Gorman’s individual statistical chance of developing metastasised tumours as that statistical chance was relatively low. Any damages would then reflect that low statistical chance.

5 Between the hearing at first instance and the appeal, this Court held in Gett v Tabet [2009] NSWCA 76 that Rufo should not be followed. The consequence for the appellant was that the forensic approach it took at first instance was to no avail. Whilst it was perfectly proper for the appellant to make forensic decisions in the conduct of its case, it should be bound by the way its case was conducted at trial. There are practical reasons why this is so.

6 Had the appellant not accepted that the evidence of Professors Levi and Tattersall related to Mrs O’Gorman’s individual case, different submissions might have been made at trial. If the appellant had taken a different approach at trial, Mrs O’Gorman’s legal representatives might have sought to adduce further evidence, including by way of cross-examination of the two medical experts. Giles JA has noted that the appellant’s acceptance that the evidence related to Mrs O’Gorman personally only came in its final submissions. However, the Court does not know whether there was some earlier acknowledgement or tacit acceptance that that was so. Even had there been no earlier indication by the appellant of its position in relation to this evidence, the respondent might still have applied for leave to re-open to adduce further evidence from either or both Professor Levi and Professor Tattersall.

7 Save for the above comments, I agree with their Honour’s respective reasons in relation to causation.

8 The second matter upon which I wish to comment relates to the rejection of certain of the evidence of Drs Varnava and Van Rooijen. The trial judge said that he rejected the evidence of these two witnesses for a number of reasons including that “the evidence was in the nature of expert evidence and had not been served in accordance with the rules”. As Ipp JA observes, the trial judge did not state which aspects of the Uniform Civil Procedure Rules 2005 (UCPR) he relied upon to reject this evidence.

9 In my opinion, it is unlikely that his Honour’s concern was with service of the reports. It would not have made sense for his Honour to have been concerned with this, first, because he had permitted the matter to proceed urgently and without strict compliance with the rules; secondly, because the evidence of the two doctors had, in any event, been provided by way of report; and thirdly, because the service of expert reports was subject to his Honour’s direction, as I explain below.

10 The question arises then as to what rules his Honour had in mind. Expert evidence is governed by UCPR, Pt 31. Pursuant to r 31.36(1), a person commencing a professional negligence claim must file an expert’s report with the statement of claim. The court may also give directions as to the expert evidence to be adduced at trial: r 31.36(4). Directions may be sought, inter alia, by way of notice of motion: r 31.36(5). Rule 31.36(6) then provides, relevantly:

“(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence:

11 His Honour could have given directions pursuant to subrule (6) during the course of the trial that the existing reports be treated as expert reports. It is unlikely, given that the manner in which the trial had proceeded, that his Honour would have been churlish about no notice of motion having been filed under subrule (5) seeking directions in respect of the reports. In any event, he had power to dispense with the requirements of that rule (and any rule) under the Civil Procedure Act, s 14. It is likely, in my opinion, that his Honour would have been concerned with matters of substance insofar as non-compliance with rules of court was concerned.

12 One of the significant requirements of the rules is that experts must agree to be bound by the expert witness code of conduct: UCPR, r 31.23 and Sch 7. Initially, I thought that it was likely that his Honour was concerned that these doctors had not provided reports that complied with the rules relating to the code of conduct. Whilst I consider that was likely, it is also possible that his Honour had other rules in mind. For example, there may have been an experts’ conference in which the two doctors had not engaged: see UCPR, r 31.24. I should indicate, however, that the evidence does not reveal whether or not there was an experts’ conference.

13 His Honour’s reference could possibly have been directed to the fact that concurrent evidence had been given by Associate Professor Osborne and Dr Kitchener: see UCPR, r 31.35, on the issues on which the evidence of Drs Varnava and Van Rooijen was relevant, although it has to be recognised that the language used by his Honour was not apt to cover this possibility. His Honour may, however, have been using very general language to cover the range of rules that relate to expert reports.

14 The fact that there are a number of possibilities as to which rules his Honour was referring to reinforces the view expressed by Ipp JA that this aspect of his Honour’s ruling is unclear. This is relevant because unless the basis for the ruling is known, it is not possible to determine whether his Honour erred in the exercise of the discretion that is conferred by the rules in respect of the admission of expert evidence.

15 That leads me to another point. Senior counsel for the respondent submitted that because the reports of Drs Varnava and Van Rooijen did not include a statement that each agreed to be bound by the code of conduct, the reports were not admissible. That submission must be rejected. UCPR, r 31.23(3) provides that:

Unless the court otherwise orders

16 His Honour could have made an order under this subrule that the reports be admitted, notwithstanding that they did not contain the statement relating to the code of conduct. That would have been an appropriate order to make in this case, given the urgency with which the trial proceeded. In any event, the doctors could have made the relevant statement as to the code of conduct in the witness box.

17 The real question therefore becomes whether Drs Varnava and Van Rooijen could give expert evidence. It is apparent from his Honour’s comments during the course of the trial that he considered that they could not give expert evidence, effectively in their own cause, their examination of the mammograms being at the heart of the negligence claim against the appellant. For the reasons given by Ipp JA, that is not correct. What weight his Honour might have given to the evidence is a separate matter. However, weight does not affect admissibility.

18 I agree with the orders proposed by Ipp JA.

19 GILES JA: The issues in the appeal and cross-appeal are described in the reasons of Ipp JA, which I have had the considerable benefit of reading in draft.

20 I agree that the challenges to the trial judge’s factual findings concerning the increase in size of the mass should not succeed and that the cross-appeal on damages should be dismissed. In these respects I agree with the reasons given by Ipp JA and do not wish to add anything.

21 I agree also that the trial judge’s finding of causation should be upheld, and that the trial judge was in error in rejecting the evidence of Drs Van Rooijen and Varnava and a new trial on the issue of negligence should be ordered. In these respects I generally agree with his Honour’s reasons, but subject to the following observations.

Causation

22 The trial judge posed the question of “the difference a diagnosis in 2006 would have made to the plaintiff’s outcome”. He found that Mrs O’Gorman would have “undergone all investigations which were recommended to her”, as I understand it meaning also treatment. His Honour said, the survival rates being with treatment -

“

23 As Ipp JA has described, the 10 per cent increase in risk was derived from the opinions that, had the mass been detected and treated immediately after the mammogram of 23 February 2006, there was a 38 per cent chance of the metastatic tumours nonetheless developing, and that the equivalent figure as at 17 January 2007 was 42 per cent. There was mathematically an approximate 10 per cent increase in the risk of metastasisation.

24 The defendant submitted to the trial judge, relying on Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 and Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151, that there should be found a 10 per cent lost chance of a better outcome caused by the delay in diagnosis; implicitly, therefore the plaintiff should recover only 10 per cent of the assessed damages. The plaintiff submitted, relying in particular on what was said by McHugh J in Chappell v Hart [1998] HCA 55; (1998) 195 CLR 232 at [27], that the delay in diagnosis caused the metastatic tumours because there was a 10 per cent increase in the risk of those tumours developing and that risk eventuated; implicitly, therefore the plaintiff should recover the full amount of the assessed damages.

25 The trial judge noted that neither party referred to ss 5D and 5E of the Civil Liability Act 2002. He accepted that these provisions were in accord with common law principles. After reference to other cases, he expressed his conclusion -

“[150] The submission put on behalf of the plaintiff should be accepted. The evidence clearly supports the application of the causation principle stated by McHugh J in Chappel v Hart . The uncontradicted evidence of Professors Levi and Tattersall is that the delay in diagnosis increased the risk of metastasisation by 10%. This was not a case where metastasisation was likely in any event and the plaintiff had merely lost the chance of a better outcome. The events which occurred, ie the development of tumours in the plaintiff’s lungs and brain, occurred within the very area of risk which had been increased by the delay in diagnosis.

Rufo v Hosking

26 Dobler v Halverson

did not endorse Rufo v Hosking, and Rufo v Hosking has since not been followed: Gett v Tabet [2009] NSWCA 76. The appellant did not, other than by a formal submission, maintain on appeal that the recovery should be on the basis of loss of a chance of a better outcome.

27 The appellant’s position on appeal was that Mrs O’Gorman could recover nothing, because the statistical increase in risk from 38 per cent to 42 per cent did not prove that the metastasisation she experienced was caused by the delay in diagnosis. Mrs O’Gorman might have been one of the statistical 38 per cent. There was an increase in risk, but increase in risk was not enough for causation and she might also have been one of the 42 per cent. A 42 per cent statistical risk was still less than a probability. Thus it was not shown that the delay in diagnosis had any effect on the progression of Mrs O’Gorman’s cancer as at February 2006 to the metastasisation she experienced.

28 The appellant submitted that the present case was on all fours with Gett v Tabet. As Ipp JA has explained, that is not so. The plaintiff in Gett v Tabet failed to prove causation because whether the outcome would have been better had the CT scan been ordered on 13 January was no more than speculative. The Court endorsed at [254] that, while material increase in risk was not to be equated with material contribution to the injury, causation would be proved if the plaintiff established “that it was probable that the risk created by the tortfeasor came home”. The plaintiff in Gett v Tabet did not. Whether Mrs O’Gorman did was the issue in the present case.

29 Language of the risk coming home was used by Mason P in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, in the observation at 318 that a party who negligently exposes a plaintiff to a risk of injury will not be liable “unless the plaintiff can persuade the trier of fact that it was probable that the risk came home”. The influential discussion, by Spigelman CJ (with whom Davies AJA agreed) in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 used and explained the similar language of the risk eventuating. Speaking of the statement by McHugh JA in Chappel v Hart at [27] that “[i]f a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring”, the Chief Justice said -

“ [107] The starting point of McHugh J's analysis was that it had been established on the balance of probabilities that the conduct did create or increase the risk of injury, ‘and that risk had eventuated’.

[108] This starting point is the very matter in issue in the present case. Was there evidence on the basis of which the trial judge could conclude, on the balance of probabilities, that there was an increased risk of injury and that that risk had ‘eventuated’ in the specific disease of the Respondent?

[109] If there was such evidence then, to use the words of both Gaudron J (at [31]) and Callinan J (at [128]), the tribunal of fact was ‘entitled’ to find that the conduct which increased risk, materially contributed to the injury - entitled, but not, of course, required to so find.

…

[118] The issue in the present case is whether an increased risk did cause or materially contribute to the injury actually suffered.

[119] There is a tension between the suggestion that any increased risk is sufficient to constitute a ‘material contribution’, and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart and in the cases that suggest the former, the actual risk had materialised. The ‘possibility’ or ‘risk’ that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X.

30 That the risk “eventuated” did not mean simply that the plaintiff suffered the injury. If that were so, the small increased risk of renal cancer indicated by most of the epidemiological studies in Bendix Mintex Pty Ltd v Barnes plus the contraction of renal cancer would have established causation. The language of “coming home”, albeit imprecise, may better convey the requirement that on the probabilities the injury was suffered because of the increase in risk.

31 It could be found that the 10 per cent increase in risk came home if it were established on the probabilities that Mrs O’Gorman was more than one of the statistical 38 per cent, and was a person for whom the progression from breast cancer to metastasised tumours was affected by the increase in risk. The risk to her as an individual, as distinct from a member of a statistical cohort, would have materially increased, and there would have been a material contribution to the progression of her cancer to the metastatisation. Hence the respondent’s submission that the trial judge found at his [137] set out above that the approximate 10 per cent increase was specific to Mrs O’Gorman.

32 Such a finding could have been because of the evidence, or because of concession in the conduct of the defendant’s case.

33 I do not think it was because of the evidence. Professors Levi and Tattersall expressed statistical opinions, not referable to Mrs O’Gorman in particular. While the plaintiff’s submissions to the trial judge were in terms of “the plaintiff’s risk of developing metastases”, and the defendant’s submissions did not take issue with the injection of the plaintiff as an individual, this application to the plaintiff of the figures may not have been a conscious step to the plaintiff’s particular susceptibility. It was not a step founded on evidence. The trial judge’s finding at [137] may not have consciously taken that step.

34 That in the conduct of the case at trial the defendant nonetheless conceded the application of the figures as a step to the plaintiff’s particular susceptibility is, however, indicated by its loss of a chance approach. That approach accepted the 10 per cent increase in risk to the plaintiff, no doubt deliberately in the hope that the loss of a chance approach would greatly reduce damages. So before the trial judge the defendant’s submissions included that if it was negligent “it affected arguably the outcome”, but only as to the loss of a 10 per cent chance, and as Ipp JA has noted counsel accepted on appeal that the submissions involved that the risk to the plaintiff of metastasisation increased.

35 It does not follow that the appellant should not be permitted to take on appeal the position earlier described. So far as there was concession in the conduct of the trial, it appears to have been in submissions. We were not taken to anything which to my mind would work an injustice on the respondent if, the loss of a chance approach being unavailable since Gett v Tabet, the appellant were permitted to resort to other well-traversed principles of causation.

36 I go then to whether it should otherwise be found that the 10 per cent increase in risk came home. While the trial judge’s reference to the cases included the Chief Justice’s identification, in Seltsam Pty Ltd v McGuiness, of the question of whether there was evidence on the basis of which it could be concluded on the probabilities “that there was an increased risk of injury and that that risk had ‘eventuated’”, his Honour’s explanation at [150]-[151] for his conclusion was (with respect) rather scanty. His Honour may have taken up a concession that the delay in diagnosis increased the risk to the plaintiff of metastasisation by 10 per cent. If he did not, the reasoning did not go further than that the development of the tumours was within the area of risk increased by the delay in diagnosis.

37 Ipp JA has fully referred to the authorities, and I respectfully and gratefully draw on what he has said. An increase in risk gives rise to a possibility of causation, but the possibility does not of itself make out causation. It may be that in particular circumstances the increase in risk will suffice for satisfaction, on the balance of probabilities, that the increase in risk came home, see Seltsam Pty Ltd v McGuiness at [89] and [153] and Ipp JA’s example of a statistical increase in risk from 1 per cent to 99 per cent. And where there is evidence such as that given by Professors Levi and Tattersall, it can be taken into account together with other matters as “strands in the cable”, a method of reasoning well established in the law.

38 It is necessary to recall that causation in law is not the same as scientific causation. It is addressed in order to attribute legal responsibility. The balance of probabilities is a departure from scientific certainty, and there is causation if there is material contribution. So in March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Mason CJ said at 509 -

McLean v Bell

Sherman v Nymboida Collieries Pty Ltd

39 In March v E & MH Stramare Pty Ltd the Chief Justice referred at 515-519 to applying common sense to the facts of each particular case, and to the role of value judgments and the infusion of policy considerations. McHugh J in that case questioned the appeal to common sense, see also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at [97] per Gummow, Hayne and Heydon JJ. The point remains that, in the absence of scientific clarity, causation may be found in arriving at legal responsibility by inference and with evaluative judgment, provided that actual satisfaction is reached and that, as was made clear in Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627, the finding is in accordance with principle and not a “value judgment at large” (per Gleeson CJ at [29]).

40 It is here that reference may be made to s 5D of the Civil Liability Act, which applied in this case. It relevantly provides -

“ 5D General principles

(1) A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ( factual causation ), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( scope of liability ).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

…

41 Section 5D enshrines evaluative judgments in a determination that negligence caused particular harm, those of appropriateness for the scope of liability to extend to the harm for the occurrence of which the negligence was a necessary condition (s 5D(1)(b)) and of whether and why responsibility for the harm should be imposed on the negligent party (s 5D(2), (4)). It was not mentioned in argument, but underlines the common law principles to which I have referred.

42 As the trial judge said, Mrs O’Gorman’s development of metastatic tumours was within the area of risk increased by the delay in diagnosis. It can not be said with anything approaching certainty that Mrs O’Gorman would not have developed the tumours in any event. But, albeit on a statistical basis, it can be said that the risk of her doing so was increased, and she was brought materially closer to the point where (also statistically) there was a likelihood (in the sense of a “substantial – a real and not remote – chance regardless of whether it is less or more than 50 per cent”: Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 at 21) that a tumour or tumours would develop.

43 One should have in mind that, in a case such as the present, medical science may not enable a plaintiff to point to a more direct connection than that provided by epidemiological studies (although gene technology may in the future enable more to be said). Rich ACJ remarked in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 558 at 564 that “while science presents us with no more than a blank negation, we can only await its positive results and in the meantime act on our own intuitive inferences”. At least since Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 the law has weighed evidence according to the power of one side to produce and the other side to contradict, and has not been indulgent to a (legal) wrongdoer. When the 10 per cent increase in risk, much more than the small risk in Seltsam Pty Ltd v McGuiness, took Mrs O’Gorman to likelihood in the sense earlier stated, for the purposes of legal responsibility I consider that on the balance of probabilities the increase in risk materially contributed to, and so caused, the development of the metastatic tumours.

Admission of evidence

44 Ipp JA has fully described the evidence in question, and the manner with which it was dealt at the trial. It is unfortunate that there was not a little more quiet calm deliberation, with the assistance of submissions from counsel. There is no doubt that the trial judge took an initial firm reaction, but the defendant’s counsel could have been more forthright in exposing and arguing for admissibility; and counsel then appearing for the plaintiff could have contributed, since apart from a duty to assist the Court it is unlikely to be in the client’s interest to stand by when a favourable but unsound ruling is given, without explication of the true basis of objection and deflection of the judge from error. Success at trial may be taken away on appeal.

45 I respectfully share Ipp JA’s understanding that the trial judge rejected the evidence because he considered that the doctors were not giving evidence of what they did and thought at the time, and were precluded from giving expert evidence by their involvement at the time. It may be that, as evidence of practice, some at least of the rejected evidence was admissible, but the greater difficulty lies in the rejection of the evidence as expert evidence.

46 So far as the rejection may have been because what each doctor said “should have been dealt with as an expert report and it hasn’t been”, words used in relation to the statement of Dr Stephen, in my view his Honour did not mean the rules as to timely service. Rather, his Honour meant the requirement under the rules that an expert comply with the Code of Conduct under Pt 31 r 23. The essence of the trial judge’s view was that the doctors’ involvement at the time made their expert opinions unreliable, and therefore inadmissible, and compliance with the Code of Conduct went to reliability. There is no indication that, in the circumstances in which the trial was conducted, failure in timely service of the statements was of concern to the plaintiff. It will be noted that when the trial judge said, in [65] of his reasons, that Dr Van Rooijen’s statement “had not been served in accordance with the rules”, what followed was concerned with its reliability.

47 I agree with what Ipp JA has said concerning admissibility notwithstanding that the doctors may have been regarded as having an interest in the result in the proceedings. It can not be assumed that the doctors would have been unable to subscribe to the Code of Conduct had that been squarely raised.

48 A substantial wrong or miscarriage of justice was occasioned by the rejection of Dr Varnava’s evidence, at the least, and there should be a new trial as to negligence.

49 I do not understand the trial judge to have rejected the evidence of either of the doctors in the exercise of the discretion under s 135 of the Evidence Act 1995, but if he did the discretion miscarried because there was no comparative analysis of probative value and danger of unfair prejudice or other of the factors in that provision. Indeed, that is one reason for concluding that s 135 was not in his Honour’s mind, and his references to unfairness and unfairness to the plaintiff were in my reading of the transcript and judgment restatements of the unreliability he saw in the doctors’ evidence.

50

Orders

51 I agree with the orders proposed by Ipp JA.

:

The claim against the appellant and the decision of the trial judge

53 The appellant, the Sydney South West Area Health Service, implements a State and Federal Government funded program that provides free breast screening mammograms. The appellant’s principal aim is to reduce the amount of illness and death associated with breast cancer through the early detection of the disease. It has a network of eight local services operating independently of each other in New South Wales. “BreastScreen NSW Sydney South West” (“BreastScreen”) is one of the local services operated by the appellant. In these reasons, the appellant and BreastScreen are referred to interchangeably.

54 The respondent is the legal representative of the estate of the late Christine Ann O’Gorman. During her lifetime, Mrs O’Gorman brought proceedings against the appellant for damages for negligence. Mrs O’Gorman’s claim arose out of a mammogram performed on her by BreastScreen on 23 February 2006.

55 On 2 and 3 March 2006, two radiologists, Drs Van Rooijen and Varnava, acting on behalf of BreastScreen, examined Mrs O’Gorman’s 23 February 2006 mammogram. They considered that the mammogram did not indicate anything untoward and did not recommend any further investigation. It was not in dispute that the appellant is vicariously liable for the conduct of the two radiologists.

56 Before the trial judge, Hoeben J, Mrs O’Gorman contended that the 2006 mammogram displayed suspicious signs of the presence of a malignant mass in her left breast. Mrs O’Gorman’s case was that, following the inspection of the 2006 mammogram, the two radiologists were negligent in failing to recall her for further investigation.

57 After the 2006 mammogram, Mrs O’Gorman took no steps to investigate the possible existence of a cancer in her breast until 17 January 2007, when BreastScreen carried out a further mammogram. She was then diagnosed with having a carcinoma of the left breast.

58 The carcinoma subsequently metastasised into Mrs O’Gorman’s lungs and brain. After the trial, but before the hearing of the appeal, Mrs O’Gorman died.

59 Hoeben J found in favour of Mrs O’Gorman. That is, his Honour found that Drs Van Rooijen and Varnava were negligent as Mrs O’Gorman alleged and that the appellant was vicariously liable for their negligence.

60 The negligence as found involved the casual acts of negligence of the two radiologists in question, not a system of work. The respondent does not now assert a case based on a negligent system.

61 Hoeben J found further that the negligence of Drs Van Rooijen and Varnava caused the metastasised tumours from which, at the time of the trial, Mrs O’Gorman was suffering. His Honour assessed Mrs O’Gorman’s damages in the sum of $405,990.15 and granted judgment in her favour against the appellant in this amount.

62 By this appeal, the appellant challenges his Honour’s findings as to negligence and causation. The respondent cross-appeals on the assessment of damages.

63 The appellant’s grounds of appeal fall into three main categories:

(a) Challenges to the factual finding made by his Honour that the posterior mass depicted in the 2006 mammogram had significantly increased in size since 2004. These challenges may in turn be divided into three sub-categories, namely:

(i) The argument that his Honour erred in not preferring the opinion of Associate Professor Osborne (the expert called by the appellant) to Mrs O’Gorman’s expert (Dr Kitchener) on the ground that Associate Professor Osborne had greater expertise.

(ii) The argument that his Honour erred in deriving support for his preference for Dr Kitchener’s opinions from the evidence of Professor Levi and Dr Varnava.

(iii) The argument that, in preferring Dr Kitchener, his Honour impermissibly took into account his own opinions on issues requiring expert testimony.

(b) Submissions that his Honour erred in finding that the failure to recall Mrs O’Gorman for further examination caused the tumours that metastasised.

(c) Submissions that his Honour wrongly disallowed expert evidence by Drs Van Rooijen and Varnava that tended to justify their conduct.
The duty of care owed by the appellant

64 The mammograms BreastScreen carried out on Mrs O’Gorman were “screening” mammograms. A screening mammogram is a procedure designed to detect unsuspected lesions in asymptomatic “well” women. Hoeben J observed that, with screening mammograms, the emphasis is on mass population screening to reduce overall mortality and morbidity. The appellant provides recall for further tests when needed, as well as recall for routine screening at recommended intervals.

65 A screening mammogram is to be contrasted with a diagnostic mammogram. A diagnostic mammogram is used for diagnosing breast changes or abnormalities that may have been detected through breast self-examination or clinical examination. With a diagnostic mammogram the emphasis is on individual benefits. In an unchallenged finding Hoeben J accepted that there was a proper distinction to be drawn between the two kinds of mammograms.

66 Taking into account the differences between the two procedures, Hoeben J held that the appellant was obliged (at [107]):

“to provide that level of care and skill in the interpretation of mammograms to be expected from a reasonably competent radiologist in the context of a mammogram screening program.”

67 Thus, as his Honour held, it was necessary for Mrs O’Gorman to establish that there were suspicious features in the 2006 mammogram which sufficiently raised the possibility of malignancy to have required the two radiologists in question to recall her for further investigation. Mrs O’Gorman relied in this regard particularly on changes she contended should have been detected in the 2006 mammogram when compared with the mammograms carried out in 2002 and 2004.

BreastScreen’s practice at the relevant time

68 At the time of the 2006 mammogram BreastScreen’s practice, in carrying out mammograms, was to take four to six films. These involved different views of each breast. The films were taken to a viewing room where a viewing machine would be loaded with the current mammograph films that were to be examined. The films would be placed on the top row. If available, comparison mammograph films previously taken were placed on the bottom row. Usually, these would be films taken four years previously. A light at the rear of the viewing machine illuminated the films. The viewing radiologist would be able to see the relevant films by scrolling across the screen of the viewing machine.

69 Two radiologists would always view the mammogram films. Each would do so separately and independently and make his or her own assessment. In doing so, neither had access to the assessment of the other. If the two assessments coincided, the recommendation by both was followed. If a disagreement arose, a third radiologist would read the films and the decision of the majority would be followed.

The Critical Factual Issue

70 Although a considerable amount of expert evidence, ranging over many issues, was given, the dispute between the parties’ respective expert witnesses crystallised into one principal issue, described by Hoeben J as “a matter of fundamental importance at the trial”. That issue was whether an area in the 2006 mammogram (to which all at the trial referred to as “the mass”) had increased significantly in size when compared to mammograms that BreastScreen had performed on Mrs O’Gorman in 2002 and 2004.

71 Either the 2002 or 2004 mammograms were used as a comparator as it was common ground that there had been no material change in the size of the mass between 2002 and 2004.

72 The principal expert on whom Mrs O’Gorman relied was Dr Kitchener. BreastScreen, principally, relied on the expert testimony of Associate Professor Osborne.

73 Dr Kitchener identified aspects of the 2006 mammogram that gave rise to suspicions that a malignancy was present. As Hoeben J observed (at [112]), these were:

“(a) A doubling in the size of the mass.

(b) The partially indistinct margins of the mass.

(c) The increase in size of the posteromedial band.

(d) The presence of an anterior band.

(e) The presence of calcification within the mass as well as within the bands.

(f) Some lobulation laterally to the mass.”

74 According to Dr Kitchener, the doubling in the size of the mass in the 2006 mammogram, when compared to the 2002 or 2004 mammograms, alone was sufficient to require the recall of Mrs O’Gorman. Dr Kitchener was of the opinion that the increase in size of the mass, alone, gave rise to a real suspicion that a cancer was present.

75 The other features Dr Kitchener identified were – according to him – not individually decisive. In his opinion, however, their total effect indicated that the 2006 mammogram displayed suspicious signs of malignancy.

76 Associate Professor Osborne, in essence, was of the opinion that all the potentially suspicious aspects of the 2006 mammogram identified by Dr Kitchener (except the increase in the size of the mass) were capable of a benign interpretation. Hoeben J pointed out in this regard (at [113]):

“Associate Professor Osborne gave evidence in relation to all of those matters (except the increase in the size of the mass) to the effect that such signs were equivocal and were still consistent with a diagnosis of benign breast fibro-cystic changes. At no time did he concede that the calcification was suspicious in appearance.”

77 Associate Professor Osborne acknowledged, however, that if the mass had approximately doubled in size as Dr Kitchener said, that would be a suspicious sign requiring Mrs O’Gorman’s recall. His opinion in this regard is encapsulated in the following statement he made when giving oral evidence:

“If there has been a significant increase in size, in other words, if there has been significant change then it is the change that necessitates – that would warrant the recall.”

78 Later, he repeated that if the 2006 mammogram had indicated a “significant change in size” Mrs O’Gorman should have been recalled.

79 But, while Dr Kitchener was of the opinion that a significant increase in size (an approximate doubling) had occurred, Associate Professor Osborne differed. Associate Professor Osborne was of the opinion that the mass in 2006 was approximately the same size as it had been in 2004, although it was denser in appearance. He said that the mass depicted in the 2006 mammogram, when compared with either the 2004 or 2002 mammograms, was consistent with a benign cyst. Hoeben J noted that Associate Professor Osborne’s position was that “there had not been any increase in size beyond what he described as marginal”.

80 According to Hoeben J, this was the most obvious point of difference between the two doctors and became a decisive consideration on the question of breach. The parties did not challenge this approach.

81 His Honour preferred the opinion expressed by Dr Kitchener and rejected that of Associate Professor Osborne. This finding led inevitably to the further finding that Dr Van Rooijen and Dr Varnava had breached the duty of care that each owed Mrs O’Gorman.

82 The appellant’s arguments, save in regard to the issue of causation, bore directly or indirectly on his Honour’s finding that the 2006 mammogram indicated that the mass had increased significantly in size.

The relative expertise of Dr Kitchener and Associate Professor Osborne

83 The appellant submitted that Associate Professor Osborne had far greater expertise than Dr Kitchener in the reading of mammograms. The appellant submitted that Hoeben J erred in failing to pay due weight to this factor and should not have accepted the opinion of Dr Kitchener “who was much more a generalist than a specialist in this field”.

84 Hoeben J dealt with this issue as follows (at [73]):

85 According to Associate Professor Osborne’s curriculum vitae he has “sub-specialised for the past 20 years in women’s imaging, and for the past decade in breast imaging and procedures”. He has formal qualifications in assessment. He has organised training courses for radiologists in breast screening in Australia and other parts of the world. He has had considerable practical experience in assessing breast screening, this being part of his daily practice. In addition, for many years he has lectured and taught in the field of breast screening.

86 Dr Kitchener, as well, is a vastly experienced radiologist. He, too, has had considerable practical experience in medical imaging, particularly in regard to mammography. He has been concerned in the introduction of various mammography ultrasound techniques into clinical practice in Australia and has spoken widely on the topic. Like Associate Professor Osborne, he has published widely in the field. He has had a continuing involvement in mammography and other breast investigations since 1975.

87 There is no doubt, as Hoeben J pointed out, that each of the two doctors “is an experienced and highly qualified radiologist with a particular interest in breast imaging”.

88 In these circumstances, his Honour was entirely justified in taking the view that the resolution of the conflict of opinion between Associate Professor Osborne and Dr Kitchener could not be achieved “by reference to any superior expertise on the part of either of them”.

89 It was a matter for his Honour, as the trial judge, to determine the differences in opinion between the two experts. In carrying out this exercise, it was a matter for him to determine what weight should be attributed to their expertise, qualifications and experience – as it was in regard to the other relevant factors. His Honour made no error in principle in deciding that the issue could not be determined by weighing up the expertise of these two specialists who were both eminent in their field. Once the experts were properly qualified, it is perfectly understandable that his Honour would wish to determine the differences between them by reference to the logical force of their testimony, the evidence as a whole, and questions of demeanour.

90 In my view there is no substance in the argument that Hoeben J should have preferred the opinion of Associate Professor Osborne because his qualifications, in some way, were greater than those of Dr Kitchener.

Professor Levi and Dr Varnava

91 Hoeben J considered that evidence given by Professor Levi, an oncologist who testified on behalf of Mrs O’Gorman, provided support for the conclusion of Dr Kitchener that the mass on the 2006 films was significantly larger than that on the 2004 films.

92 In a report dated 27 November 2007, Professor Levi made two relevant points about the 2006 mammogram. Firstly, he stated:

“[The 2006 mammogram] clearly shows an irregular, fairly well circumscribed density within the upper part of the breast centrally. The measurements taken by myself of this mass are 3 x 3.5 cm (sic).”

93 According to Dr Kitchener, the dimensions of the mass he observed in the 2006 mammogram were 35 x 30 x 28 millimetres. There is no evidence that Associate Professor Osborne measured the mass. He merely maintained the view that the size of the mass in 2006 was approximately the same as it was in 2004 (while acknowledging that it was denser), subject to the minor qualification that he had “no problems that it could be marginally bigger”. Nevertheless, according to Hoeben J, Associate Professor Osborne disagreed with Dr Kitchener’s measurements.

94 To the extent that Professor Levi measured the mass, his measurements, as Hoeben J pointed out (at [95]), coincided with two of those recorded by Dr Kitchener. In context, therefore, I am unable to detect any error on the part of Hoeben J in finding that Professor Levi’s evidence lends support to the opinion of Dr Kitchener.

95 Hoeben J also considered that the evidence of Dr Varnava supported the conclusion of Dr Kitchener and the appellant contends that his Honour erred in this respect.

96 Dr Varnava said in regard to the 2006 mammogram, “the previously reported 2.5 cm mass … has increased in size to 3 cm”. Hoeben J (at [93]) pointed out that, even if the other dimensions had remained unchanged, this represented an increase in size of approximately 20%.

97 Of course, an increase in size of approximately 20% in regard to one dimension does not establish an approximately doubling in size. Nevertheless, Dr Varnava’s opinion that the one dimension had increased by approximately 20% is inconsistent with the views expressed by Associate Professor Osborne. To this extent, Hoeben J was correct in saying that Dr Varnava provides “some support” for the conclusion of Dr Kitchener.

98 In the circumstances I would not uphold the appellant’s arguments based on Hoeben J’s reliance on the testimony of Professor Levi and Dr Varnava.

Did Hoeben J impermissibly take into account his own opinion in interpreting the expert evidence

99 The appellant contends that his Honour erred “in taking into account his own opinions regarding the interpretation of the mammograms formed by his observations of the mammograms”.

100 The appellant’s argument on this issue was set out in its written submissions as follows:

“The ‘reading’ of the mammogram involved interpretation of that which was observable. That interpretation required application of expertise. It was not as simple as, for example, looking at a colour photograph or placing a ruler on a graph and measuring distance between peaks or simply observing where a mark appeared on a chart. It is quite unlike a process of observing what appears on a photograph; what appear as shadow-like structures of varying density need themselves to be interpreted. What appears to an untrained eye, such as his Honour’s, may be quite different to that which a trained observer sees. His Honour, having indicated that, to his observation, the mass under consideration had markedly increased in size upon comparing the two mammograms, he should have pointed out to the experts (particularly to Associate Professor Osborne, with whom he disagreed) what were the features which [led] him to the conclusion that he was tending towards and invited Associate Professor Osborne’s response. He did not do so. The appellant could hardly know what was in his Honour’s mind and, in any event, should not be in a position to have to enquire. The appellant was irretrievably disadvantaged by his Honour’s conclusion.”

101 At trial, during the presentation of the evidence of Associate Professor Osborne and Dr Kitchener, the 2006 and 2004 mammograms were displayed in court. As the trial judge recounted (at [90]), the general position of Associate Professor Osborne was that, owing to the difficulties of mammography, it was difficult to make accurate measurements of the mass based upon it. Dr Kitchener’s view, on the other hand, was that the change in size (as revealed by a comparison of the two films) was so obvious that there was no need to engage in any precise measurements, even though he had done so.

102 The trial transcript recorded the following exchange between the two experts while observing the displays of the mammograms (at Black 124-125):

“WITNESS KITCHENER: This is certainly a true craniocaudal view. So this is a partial view of the same. These two, number 1 and number 2, are craniocaudal and number 3 and number 4 are mediolateral. If you just compare the size of the mass there to the size of the mass there, I don’t think it requires a measurement to tell the difference.

WITNESS OSBORNE: On the contrary. I think if you take that measurement there to that measurement there which is going through 1, 2, 3, 4 and that measurement there to there, it’s still going through 1, 2, 3, 4. What I suggested was that they were approximately the same size. I have got no problems that it could be marginally bigger but what I am saying is that this actually appears denser, easier to see, and therefore as it is easier to see one can see the margins more clearly. But if you actually go from there to there and there to there, it is still approximately the same size, but it is denser.

HIS HONOUR: I will just continue with Dr Kitchener. You have heard what Professor Osborne says. Do you agree with that?

WITNESS KITCHENER: Not at all. If you look at this image there you can see the margins of the mass perfectly clearly. You can see the back of it and the front of it. If there is some discussion of where the top end of it and the bottom is, you can certainly see the front and back and you can certainly see the front and back there.”

103 His Honour found (at [99]) that the mass had in fact doubled in size since the 2004 mammogram. In arriving at that conclusion, his Honour said (at [92]):

“As a lay person I found that the comparisons of the size of the mass in the films on which Dr Kitchener relied clearly demonstrated to the naked eye that the 2006 mass was significantly larger. In that regard I appreciate my limitations in that I am not experienced in interpreting mammographic films. I cannot, however, ignore my observation that on a simple visual comparison the mass on the 2006 films appeared significantly larger than that on the 2004 films.”

“In determining this issue, I have also taken into account my assessment of the respective witnesses. Both doctors strongly supported their respective points of view. I found Dr Kitchener, however, ready to make concessions where appropriate, and to approach the questions with a rather more open mind than Associate Professor Osborne. In the case of Associate Professor Osborne I felt that he was very protective of the BreastScreen procedures and that this did inevitably colour his responses. Generally speaking, although both witnesses sought to assist the Court, I found Dr Kitchener’s approach to be more considered and reasonable.”

“I cannot accept the opinion of Associate Professor Osborne that the size of the mass in 2006 was approximately the same as in 2004. There is no support for this opinion other than Associate Professor Osborne’s own assertion. Leaving aside the assessments of Dr Kitchener and Professor Levi, and my own observation of the mammogram films, this opinion is clearly in conflict with that of Dr Varnava. Dr Varnava’s measurement of one of the dimensions showed an increase of at least 20%. In my opinion, a difference of 20% cannot be correctly characterised as ‘approximately the same size’.

On this issue I am satisfied that the opinion of Associate Professor Osborne is incorrect and I prefer the evidence of Dr Kitchener. Doctor Kitchener’s evidence is substantially supported by that of Professor Levi and as to one measurement at least, by Dr Varnava. It also accords with my own observation of the mammographic scans. Once the opinion of Associate Professor Osborne is rejected, the only guidance which I have is the assessment of Dr Kitchener that the 2006 mammogram showed that the posterior mass had approximately doubled in size since the 2004 mammogram. That is the finding which I make.”

104 The appellant contends that his Honour fell into error when he observed that he could not ignore his observation (at [92]) that “on a simple visual comparison” the mass had increased in size between 2004 and 2006 and (at [99]) that the evidence of Dr Kitchener accorded with is own observation of the mammograms. According to the appellant, his Honour thereby impermissibly took into account his own personal interpretation of the mammograms, as he was not qualified to do. The appellant argued that his Honour “should have pointed out to the experts (particularly to Associate Professor Osborne, with whom he disagreed) what were the features which led him to the conclusion that he was tending towards and invited Associate Professor Osborne’s response”.

105 The principles informing judicial fact-finding and the receipt and interpretation of expert evidence were recently considered by this Court in Strinic v Singh [2009] NSWCA 15. In that case, the trial judge (a District Court judge and former Compensation Court judge of many years standing) made several findings and inferences of fact as to the appellant’s medical condition. These were not supported by medical evidence but were the product of the trial judge’s own medical knowledge. In allowing the appeal, Beazley JA set out the relevant principles (at [60]-[65]):

Saunders v Adderley

‘It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one of which the judge is entitled to take judicial notice.’

…

Saunders v Adderley

I have put that proposition in blunt terms, because it is the underlying fundamental principle upon which courts must act. Procedural fairness does, however, take its colour and hue from the particular circumstances at hand. Thus, a specialist tribunal will have greater leeway in applying its specialist knowledge, either because the constituting statute so provides, or because the parties are taken to understand its practices. Such tribunals are often the sole and final determiners of fact. Likewise, a trial judge would be entitled to advise the parties that he understood certain medical evidence to have a particular meaning, even if that meaning was not stated in the evidence. If all parties agreed that the judge’s understanding on that matter was correct, then, the matter being transparent and not in dispute, there would be no breach of procedural fairness in the trial judge’s acting on that understanding.”

106 This is not a case where the above principles were offended.

107 During the course of the testimony of the two experts, his Honour said to senior counsel then representing the appellant:

“[T]here is an issue about the size of the mass. I simply want him to point out and say there’s the mass … .”

108 His Honour then asked Dr Kitchener if the films being viewed showed the mass. Dr Kitchener replied that they did and indicated where in the films the mass was to be seen. Associate Professor Osborne then, while pointing to parts of the film that was being displayed, said, “if you go from there to there and there to there, it is still approximately the same size … .”

109 Hoeben J thereupon asked Dr Kitchener whether he agreed with Associate Professor Osborne. Dr Kitchener replied, “not at all”. He said:

“If you look at this image there you can see the margins of the mass perfectly clearly. You can see the back of it and the front of it … .”

110 His Honour pointed out a difficulty he had with certain images and Dr Kitchener replied by referring to “an anterior margin down here and a posterior margin down here”.

111 Associate Professor Osborne thereupon pointed to parts of the film and said “if you actually look here you can see the inferior margin but you can’t actually see the superior margin well”. He said, “If you take that measurement to that measurement and that measurement to that measurement, once again just measuring on the scales that have been drawn here, they are approximately the same.” Dr Kitchener responded by reference to aspects of the film being viewed. His Honour specifically asked Dr Kitchener to identify a particular feature of the film to which he had referred and Dr Kitchener did so as well as identifying other features.

112 The testimony proceeded in this fashion. Both witnesses identified parts of the film they considered supported them and the judge asked questions to clarify matters for himself.

113 The procedure so adopted was entirely orthodox. The experts explained by reference to the films being displayed in court the features they considered important and the attention of the judge was drawn to those matters each considered relevant. His Honour then decided by reference to what he had seen and heard which opinion he preferred. This is how our system of adversarial justice works. There is nothing in this exercise that suggests that his Honour sought to apply his own knowledge to what he had been told by the witnesses.

114 None of his Honour’s reasoning on this issue could have come as a surprise to the appellant. That reasoning reflects the testimony given, his Honour’s questioning of the witnesses and their replies. The approach taken by his Honour did not occasion a breach of procedural fairness. The appellant had every opportunity to put its case to his Honour on this issue and did so through the evidence of Associate Professor Osborne and the questions and submissions of its counsel.

115 Hoeben J expressly disavowed any relevant expert knowledge on his part and acknowledged (at [92]) his limitations in this regard. Nothing in his Honour’s reasons indicates that he acted contrary to this approach. His Honour did not base his assessment of the change in size of the mass upon his own medical knowledge or experience of interpreting mammograms. I would reject this ground of appeal.

Causation

116 The facts relevant to causation fall within a small compass. They are as follows:

(a) The appellant’s radiologists failed to detect from the mammogram taken on 23 February 2006 that there were suspicious signs of malignancy in Mrs O’Gorman’s left breast.

(b) On the findings of Hoeben J that failure was negligent.

(c) Had the malignancy been detected and treated immediately after the mammogram of 23 February 2006, there was a 38 per cent chance of a metastatic tumour, in any event, developing elsewhere in Mrs O’Gorman’s body. I understand this to mean that 38 persons out of 100 in Mrs O’Gorman’s position would have experienced the tumour metastasising (even had treatment immediately occurred), and 62 persons out of 100 in that position would not.

(d) On 17 January 2007, when further examination resulted in the detection of the tumour, there was a 42 per cent chance of metastasis occurring elsewhere in Mrs O’Gorman’s body.

117 A further fact is highly significant to the causation issue. This concerns the extent of the increase of the risk of metastasis caused by the failure of the appellant to detect the tumour in March 2006. There is an issue between the parties as to whether this risk was found by his Honour to relate to Mrs O’Gorman personally (that is, to her as an individual) or whether it was merely another piece of general epidemiological evidence. Hoeben J said in this regard (at [137]):

“There was no material difference between the evidence of Professors Levi and Tattersall as to the survival rates attached to a diagnosis of breast cancer in March 2006, rather than January 2007, and the percentage likelihood of metastasisation. The effect of their combined opinion is that the risk of the plaintiff’s breast cancer metastasising between March 2006 and January 2007 increased by approximately 10%. That figure was agreed by the parties in their written submissions.”

118 His Honour’s statement in [137] concerning the effect of the “combined opinion” of the two experts constitutes a finding of fact that, as articulated, concerns the risk to the plaintiff individually, not to her as a part of a statistical segment of the population.

119 The appellant did not appeal against that finding and, in argument on appeal, Mr Menzies QC (who together with Mr Hodgson appeared for the appellant) challenged it only in reply. Presumably Mr Menzies thought that a reply was called for as Mr B Toomey QC (who together with Mr D Toomey appeared for the respondent) relied on the finding, submitting (correctly) that the finding was not epidemiological evidence. Mr Menzies submitted that, notwithstanding his Honour’s formulation of the experts’ combined opinion, the increase in risk to the plaintiff of about 10 per cent was indeed epidemiological evidence as it involved merely a mathematical extrapolation from two pieces of epidemiological evidence that were common ground. The first was that, in March 2006, the tumour would have metastasised (even had treatment immediately occurred) in 38 persons out of 100 in Mrs O’Gorman’s position, but this would not have occurred in 62 persons out of 100 in that position. The second was that, by January 2007 (even had treatment then occurred), the risk had increased to the extent that the tumour in 42 persons out of 100 in Mrs O’Gorman’s position would have metastasised (and metastasis would not have so occurred in 58 persons).

120 According to Mrs O’Gorman’s written closing submissions at trial, “between the beginning of 2006 and her diagnosis with breast cancer in 2007, the plaintiff’s risk of developing metastasis increased by more than 10%”. This was a submission that the risk to the plaintiff, personally, had increased by more than 10 per cent. The appellant’s written closing submissions at trial did not deal with the issue. Mr Menzies, in oral closing submissions at trial, said (Black 196), “metastasisation was likely in the percentages that the medical practitioners have said. If the defendant was negligent it affected arguably the outcome.” Mr Menzies, quite properly, accepted before this Court that he had indicated to Hoeben J that the risk to the plaintiff, herself, increased (appeal transcript 38.41).

121 The issue whether the appellant may now disavow any acceptance that the risk to the plaintiff increased by about 10 per cent is a difficult one, but in the light of the matters to which I have referred in this connection, I incline to the view that it cannot now resile from that acceptance. I shall deal with the matter on that basis and also on the basis that my view on this issue may be wrong.

122 Mr Toomey submitted that the governing principal was that “a material increase in risk equates to a material contribution provided the risk eventuates”.

123 In my reasons in Flounders v Millar [2007] NSWCA 238 (with which Handley AJA and Hoeben J agreed) I discussed this proposition and cases relevant to it. I do not propose to repeat everything that I said there. I would however make the following comments.

124 The notion that there is an equivalence between a material increase in the risk of injury and a material contribution to injury has been refuted in this Court by Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 especially at 315 – 316 and TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 where Mason P explained (at [59]):

“A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant’s breach caused or materially contributed to the harm actually suffered.”

Roads & Traffic Authority v Royal

125 In Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Spigelman CJ (with whom Davies AJA agreed; Stein JA dissenting) said (at [119]):

Chappel v

Hart

because

190 In my opinion, however, the fact that the radiologists did not know what they saw and thought when they examined the mammograms in 2006 was not a valid reason for rejecting their expert evidence. As experts, they were entitled, later, to instruct themselves on the relevant facts by examining the relevant mammograms to express an opinion as to what the mammograms revealed. Provided they had examined the relevant mammograms before the trial, their memory of what had actually occurred in 2006 was irrelevant to the expert evidence they sought to give.

The failure to serve the statements in accordance with the UCPR

191 As I have attempted to demonstrate, it is far from clear that, during the trial (as opposed to when delivering his written reasons for judgment), the appellant’s failure to serve their statements as expert reports under the UCPR was a ground that Hoeben J relied on for rejecting the disallowed evidence of Drs Van Rooijen and Varnava. Not only did his Honour, at that particular stage, not make any express reference to the rules of court, nor did Mr Bartley. In fact, Mr Bartley at no time relied on any contravention of the rules of court in opposing the disallowed evidence.

192 The only possible basis for contending that, in the course of the adducing of evidence, his Honour had the appellant’s non-compliance with the UCPR in mind as a ground for rejection, is his Honour’s reference to the “earlier debate” that he made when giving his reasons for rejecting Dr Van Rooijen’s disallowed evidence, coupled with his Honour’s remark, when rejecting Dr Varnava’s disallowed evidence, that his rulings were “consistent with the earlier debate we have had”.

193 Relying on the matters set out in the previous paragraph, Mr Toomey submitted that, prior to delivering his reasons for judgment, his Honour, impliedly, indicated that non-compliance with the UCPR was one of his reasons for rejecting the disallowed evidence. This submission formed the basis of the further submission that, as – during the trial – the appellant did not seek to obtain his Honour’s leave to serve the disallowed evidence in the form of experts’ reports, it cannot now complain of the rejection of that evidence.

194 I would not uphold these submissions.

195 Firstly, in my opinion, the uncertainty (to which I have referred) of what his Honour meant when referring to the “earlier debate” (that is, in the context of what precisely had occurred in rejecting the disallowed evidence of Dr Stephen and Dr Van Rooijen), the fact that Mr Bartley did not during the leading of evidence rely on non-compliance with the rules, and the reasons his Honour gave when spelling out “exactly” why he rejected the disallowed evidence, compel the inference that, when his Honour, during the leading of the disallowed evidence, rejected it, he did not indicate that he was doing so for reasons that included non-compliance with the UCPR.

196 Secondly, even if the view expressed in the previous paragraph be incorrect, due regard must be had to the strength and firmness of his Honour’s views as to firstly, the unfairness that would result from allowing the disallowed evidence, and secondly, the lack of reliability of that evidence. Any responsible counsel, who had unsuccessfully tendered that evidence, would conclude from the way his Honour had expressed himself, that it would be counter-productive and a waste of time and costs to apply once more to adduce that evidence merely on the basis that it could be redrafted and couched in the form required by the UCPR. In my opinion, Mr Menzies was entitled to take the view that there was no point in the appellant applying for leave to serve the disallowed evidence in the form of an expert’s report as the UCPR rules require.

197 During argument on appeal there was some debate as to whether, when Hoeben J referred in [65] of his reasons to Dr Van Rooijen’s evidence being “in the nature of expert evidence” and that “it had not been served in accordance with the rules”, his Honour was referring to all the rules that had a bearing on expert evidence or whether he was confining himself to those rules relating to service of experts’ reports (Pt 31 r 28). His Honour’s remark is ambiguous.

198 In all the circumstances, it is difficult to ascertain, reliably, what precise aspect of the UCPR his Honour had in mind in referring to the rules in [65] of his reasons. In my view, his Honour’s reference to the rules should not be regarded as incorporating every aspect of the UCPR that bears on expert evidence.

199 Irrespective of whether the conclusion in the last paragraph is correct, one thing is clear. That is, whatever weight his Honour attached to the failure to serve the evidence in question in accordance with the rules, his Honour’s views as to the reliability of that evidence and the unfairness involved in allowing a person who had an interest in the proceedings to give expert evidence were, overwhelmingly, the factors that led his Honour to reject the evidence.

The relevance of the Code of Conduct under Pt 31 r 23

200 During the course of argument there was some discussion as to whether expert witnesses in the position of Drs Van Rooijen and Varnava would be able to comply with the Code of Conduct applicable to expert witnesses under Pt 31 r23.

201 The duties that expert witnesses owe to the Court are set out in Pt 31 r 23 and the Code of Conduct in Sch 7 of the UCPR. Clause 2 of the Code of Conduct states:

“2 General duty to the court

(1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness’s area of expertise.

(2) An expert witness’s paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).

202 In National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68, Creswell J set out the following exposition of duties owed by expert witnesses to the Court (at 81):

“The duties and responsibilities of expert witnesses in civil cases include the following:

Whitehouse v Jordan

Polivitte Ltd v Commercial Union Assurance Co Plc

Re J

Re J sup

4. An expert witness should make it clear when a particular question or issue falls outside his expertise.

Re J sup

Derby & Co Ltd and Others v Weldon and Others

6. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court.

7. Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports (see 15.5 of the Guide to Commercial Court Practice).”

203 This “admirable resume” of duties and responsibilities was endorsed by the English Court of Appeal: National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 1) [1995] 1 Lloyd's Rep 455 at 496. In Makita Heydon JA remarked that the Code of Conduct relating to expert witnesses under the New South Wales Rules of Court was influenced by the duties identified in The Ikarian Reefer.

204 As far as I can ascertain, the notion that expert witnesses owe a duty to the court was recognised for the first time in The Ikarian Reefer. Witnesses stand in a different position to lawyers. The public interest in the administration of justice is the source of duties that lawyers owe to the court: Rondel v Worsley [1969] AC 191 at 227 per Lord Morris. Since time immemorial the courts have assumed the inherent power to impose such duties: Myers v Elman [1940] AC 282 at 302 per Lord Atkin. The underlying principle is that “the court has a right and duty to supervise the conduct of those appearing before it, and to visit with penalties any conduct of a lawyer which is of such a nature as to defeat justice in the very cause in which he is engaged professionally”: Myers v Elman at 319 per Lord Wright. Whether at common law the court has like powers over expert witnesses is open to question.

205 Although the effect of Pt 31 r 23 is that, by subsidiary legislation, expert witnesses owe a duty to the court, the content of that duty, and the powers of the court in enforcing that duty, are yet to be determined finally.

206 In FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 at [15] Ormiston JA (Chernov and Eames JJA agreeing) said:

“[A]ll that has been said, particularly in recent years, about the desirability of expert witnesses providing independent evidence by way of opinion to the courts should be seen as expressions of the ideal manner in which expert witnesses should go about their tasks and the resultant opinions which those witnesses should strive to express. With but a few minor exceptions, none of them should be treated as stating principles of the law of evidence but they should be seen rather as admonitions to those who would give expert evidence, especially as to the way they should prepare and present that evidence to courts, if they and their clients wish it to be acted upon. Some of the statements are also directed to the ways in which courts prefer from time to time to direct the manner in which such evidence should be given, whether, for example, by way of appointment of so-called court experts or by directions requiring experts to consult and the like. However desirable these new rules and protocols may be, they cannot establish changes to the principles underlying the law of evidence, for they can do no more than change the relevant practice in particular jurisdictions, albeit that the form of such rules may involve an effective change in some of those rules under and by the authority of the relevant delegated powers invested in particular rule-making bodies.”

207 Ormiston JA explained Cresswell J’s position in The Ikarian Reefer as follows (at [17]):

Civil Procedure Rules 1998

208 Consistently with Ormiston JA’s views in ASIC v Rich [2005] NSWSC 149 at [254] Austin J described Cresswell J’s observations as being, in part, “moral exhortations rather than legal requirements”.

209 In Kirch Communication Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 Campbell J said:

Evidence Act

Supreme Court Rules

210 I accept that the rules to which his Honour was referring and the current equivalent of those rules impose more stringent duties on expert witnesses than did the common law, as his Honour implies. But, his Honour in that observation was not saying, with respect, that the rules render inadmissible expert evidence of witnesses who have an interest in the proceedings.

211 Irrespective of the precise content of the duties to the court now owed by expert witnesses under pt 31 r 23, there is no reason why expert witnesses who have a material interest in the proceedings in which they are to testify should not be able to comply with those duties. Nothing in the content of those duties, as described by Cresswell J in the Ikarian Reefer, suggests that an honest expert witness who has a material interest in the proceedings would be unable to comply with the requirements imposed thereby. For example, such a material interest would not render it impossible for the expert to present evidence to the Court that is the independent product of the expert - uninfluenced as to form or content by the exigencies of litigation, or for the expert to provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his or her expertise, or for the expert to refrain from assuming the role of an advocate. Such an expert might well be able to give truthful evidence, to ensure that the court is fully informed of his or her reasoning process, and to present evidence without misleading the court or concealing any relevant facts from the court. Whether the expert does so is a matter to be tested in cross-examination.

212 I therefore conclude that there is nothing in the UCPR that prevents a person in the position of Drs Van Rooijen and Varnova from complying with the code of conduct applicable to expert witnesses.

Are parties to litigation, or their employees prohibited from giving expert evidence in their own favour?

213 In FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat Ormiston JA said:

Clark v Ryan

Weal v Bottom

There should be no reason why a party, if a highly experienced driver, could not give such evidence, subject to the risk that he or she may be subject to the usual comment.

214 His Honour continued (at [24]):

Such evidence can surely be given by a party, or by an officer of a corporate party, and the fact that it comes from such a witness, qualified if required as an expert, should be a matter merely for comment by counsel in argument and a matter of weight for consideration by the judge in reaching his ultimate decision.

215 The same view has been expressed in several other cases.

216 In Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162 the bank retained a property valuer to give expert opinion evidence at trial. Following hearing of the appeal the case was subsequently remitted for the determination of damages. The same valuer was retained to give evidence in the rehearing. By that time, however, the valuer had in fact become an employee of the bank. Debelle J (with whom Doyle CJ and Bleby J agreed) stated (at [114], 192):

Festa v R

FGT Custodians Pty Ltd v Fagenblat

‘However desirable it may be, as a matter of common sense in the presentation of a party’s case, that an expert witness be seen to be independent, there is therefore no authority requiring this Court to hold that an “interested” expert’s evidence be rejected because of a “perception” that the witness might favour the party seeking to adduce that evidence’.

Flavel v South Australia

Liverpool Roman Catholic Archdiocese Trustees Inc v Goldberg (No 2)

R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions (No 2)

217 In Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281 the court considered whether the potential bias of an expert was a matter going to weight or to admissibility of evidence. In my reasons (with which Whealy and Howie JJ agreed) I said (at [71]):

FGT Custodians Pty Ltd v Fagenblat

Collins Thomson v Clayton

Kirch Communications Pty Ltd v Gene Engineering Pty Ltd

218 In Field v Leeds CC (2000) 32 HLR 618; [1999] CPLR 833 (at 621), Lord Woolf MR expressed the same opinion in the context of the English Civil Procedure Rules:

“The issue, which the City understood that this appeal to this court involves, is whether under the CPR it is inappropriate for an expert to be called who is an employee of the City, as opposed to an expert who is not so employed. If that is the issue which arises on this appeal, then it is a non-issue. Mr Luba, who appears on behalf of the tenants, would accept that if an expert is properly qualified to give evidence, then the fact that he is employed by a local authority would not disqualify him from giving evidence. In my judgment, Mr Luba is absolutely correct to accept that position.”

“The question whether someone should be able to give expert evidence should depend on whether, (i) it can be demonstrated whether that person has relevant expertise in an area in issue in the case; and (ii) that it can be demonstrated that he or she is aware of their primary duty to the court if they give expert evidence.”

“As to questions of opinion and generally, I entirely agree with my Lord, the Master of the Rolls, that there is no overriding objection to a properly qualified person giving opinion evidence because he is employed by one of the parties. The fact of his employment may affect its weight but that is another matter.”

219 In the circumstances, I consider that Hoeben J erred in deciding that the expert evidence of Drs Van Rooijen and Varnava was inadmissible merely because they were materially interested in the proceedings, would tend to give exculpatory evidence, and, for these reasons, their evidence would be inherently unreliable. Essentially, these matters went to weight and not admissibility, and in my view, his Honour, with respect, erred in coming to the contrary view.

The relevant provisions of the

Evidence Act

1995 (NSW)

220 Section 56 of the Evidence Act provides:

56 Relevant evidence to be admissible

Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

221 Undoubtedly, the disallowed evidence was relevant. The respondent does not contend to the contrary. The only section to which reference was made on the respondent’s behalf that could render the evidence in question inadmissible is s 135. This provides:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party, or

(b) be misleading or confusing, or

222 It is arguable that Hoeben J intended to rely on s 135(a), although his Honour did not mention the section.

223 The difficulty with any reliance on s 135(a) is that, as I have mentioned, the predominant grounds on which Hoeben J rejected the evidence was the inherent unfairness of allowing persons in the position of the radiologists to give expert evidence and the inherent unreliability of that evidence. While the notion of unfairness might encompass “unfairly prejudicial” within the meaning of s 135(a), that is no answer to his Honour’s decision that the inherent unreliability of the evidence meant that it should not be admitted.

224 In my view, irrespective of whether his Honour was intending to exercise a discretion under s 135 in rejecting the disallowed evidence, his view that an important ground on which the evidence should be rejected was its unreliability was a material error of legal principle.

225 I would add that, to the extent that his Honour’s decision amounted to a finding that admitting the evidence would be unfairly prejudicial to the respondent, his Honour erred, in my opinion, in failing to take into account the unfairness to the appellant in preventing the persons (for whose conduct the appellant was vicariously liable) from explaining and defending their conduct.

Should a retrial be ordered?

226 Pt 51 r 53 provides that the Court must not order a retrial on the ground of improper rejection of evidence unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.

227 I have mentioned that the “fundamental issue” that in effect determined the question of liability was the resolution of the dispute between Dr Kitchener and Associate Professor Osborne as to whether there had been a significant change in the size of the mass shown on the 2006 mammogram. Hoeben J explained (at [96]) that in determining this issue he had taken into account his “assessment of the respective witnesses”. His Honour was more impressed with the demeanour of Dr Kitchener and the way he presented his evidence than he was with Associate Professor Osborne (see in this regard his Honour’s comments at [96] and [97].

228 In principle, once demeanour is a significant factor in determining the issue on which the question of liability turns, the rejection of witnesses whose testimony supports the witness whose evidence was not so accepted has the potential of resulting in a miscarriage. That is because, subject to issues of cogency of the rejected evidence, the conclusion is inevitable that the rejected evidence could well lead to a different result. Thus, in considering whether the erroneous rejection of evidence should give rise to a retrial, careful consideration must be given to cogency of the rejected evidence.

229 I do not think that Dr Van Rooijen’s evidence that was rejected would have had any material affect on the result. That is because in her statement she did not state that she had inspected the 2002 or 2004 mammograms. I take into account her evidence that she believed that “after viewing the 2002 and 2006 mammograms” she would have noted Mrs O’Gorman’s history” was admitted. When that testimony is read in context, however, it is apparent that Dr Van Rooijen’s reference to viewing the 2002 mammogram is something she believed she “would have done” in 2006, not something she in fact did in preparation for giving her expert opinion. In other words, she assumed, from her past practice, that in 2006 she would have examined the 2002 mammogram. This does not inspire any confidence that at the time of the trial she had a proper appreciation of what the 2002 mammogram showed. After all, she had no independent memory of the examination she carried out in 2006.

230 Thus, Dr Van Rooijen’s evidence in paragraph 27 of her statement that the lesion in the left breast “was present over a four year period” was not supported by evidence that she independently recalled reviewing the 2002 mammogram. For that reason, in my opinion, Dr Van Rooijen’s evidence that the lesion was present for that period, and that that feature, together with other matters, meant that she correctly determined that Mrs O’Gorman did not need to be recalled, was not admissible – let alone cogent.

231 Dr Varnava’s evidence, however, falls into a different category. He stated (in paragraph 19 being evidence rejected by his Honour) that he reviewed the 2002 films “for the purposes of this statement”. In evidence admitted by his Honour (paragraph 25) and other evidence that his Honour rejected (paragraph 26), Dr Varnava made it plain that he reviewed the 2004 films in 2008. Thus, Dr Varnava’s assertion that he maintained his “interpretation of the plaintiff’s 2006 mammogram as ‘normal’ rather than requiring further assessment” was properly supported by facts set out in his statement.

232 Mr Toomey, in resisting the proposition that Dr Varnava’s rejected testimony was significant, drew attention to the fact that Dr Varnava conceded that the 2006 mammogram indicated an increase in the mass shown in the 2004 mammogram from 2.6 cm to 3.0 cm. He submitted that this was “clearly a linear measurement”, involving only one dimension. He argued that if one applied the appropriate mathematical formula applicable to a sphere (and he contended that the mass was a sphere) the increase in the mass would be 78 per cent. I would not accept this argument. It was not proved that the mass was a sphere, the appropriate formula for calculating the percentage increase in the mass as a whole was not in evidence, and Dr Varnava’s statement that the mass had increased to 3.0 cm was part of evidentiary material in which Dr Varnava said that the 2006 mammogram was normal. In these circumstances, this Court is not in a position to find that the effect of Dr Varnava’s evidence about the increase from 2.6 cm to 3.0 cm amounted to an increase in the mass of 78 per cent.

233 In paragraph 31 of his statement (that was rejected) Dr Varnava gave eight reasons for his conclusion that the 2006 mammogram was normal. As this evidence was not before his Honour, he did not consider how these reasons affected the evidence of Dr Kitchener.

234 In all the circumstances, I am satisfied that Dr Varnava’s disallowed evidence had the capacity to bring about a different result in the case.

235 I would uphold the appeal on the issue of negligence and order a retrial in that regard.

The cross-appeal

236 The respondent cross-appeals against the assessment of damages on two grounds. The first ground asserts that Hoeben J erred in deducting from the damages awarded in respect of the respondent’s loss of earning capacity in the “lost years” the full amount of her mortgage payments (cf James Hardie & Co v Roberts [1999] NSWCA 19; (1999) 47 NSWLR 425 at [44] to [47]). The second ground concerns the award for non-economic loss. His Honour found that the respondent’s injuries amounted to 55% of a most extreme case. The respondent submitted that this amount was “erroneously low”.

237 As regards the first ground, the respondent accepted that, had she been renting her home, there could be “little argument” against the whole of the rent being deducted from her putative future earnings. The respondent pointed out, however, that in making her mortgage payments, she was not only paying interest on the mortgage but reducing the capital sum she borrowed to purchase her home. The respondent submitted that in so doing she was “increasing the extent of her equitable interest in the asset”. She submitted that the mortgage payments she made exceeded the payments necessary for her to make in order to exercise her earning capacity. On this basis, she submitted that those parts of the mortgage payments that reduced the capital amount of the loan secured by the mortgage should not be deducted from her future earnings.

238 The difficulty that faces the respondent on this argument is that no evidence was adduced as to the respective amounts she paid in respect of capital and interest when she paid her mortgage instalments. The appellant submitted that:

“There being no breakdown between capital and income components in the evidence (or evidence of what the market rent for the premises would be), his Honour was correct to make a deduction of the entire amount, in effect equating it to rent”.

239 I accept the appellant’s submission that, in the absence of evidence that would enable the extent of any increase in the respondent’s interest in her home to be calculated, his Honour correctly deducted the entire amount of mortgage payments (thereby equating the mortgage payments, in effect, with rent). Accordingly, I would not uphold this ground of appeal. Mr Toomey submitted that should this ground be rejected on the absence of evidence ground, the matter should be remitted for further evidence on the point. I do not accept this submission. It was for Mrs O’Gorman, as plaintiff, to lead the evidence necessary to establish the case. She did not do so. Thus the cross-appeal must fail on this ground.

240 As regards the second ground of appeal, the respondent does not submit that his Honour made any particular error of principle when basing the award for non-economic loss on the finding of 55% of a most extreme case. I accept that his Honour’s award was significantly towards the lower end of the scale, but I am not persuaded that it was outside the bounds of a reasonable discretion. I would not uphold this ground.

241 In the circumstances I would not uphold the cross-appeal.

Conclusion

242 As I have stated, the appeal should be upheld and a retrial ordered on the issue of whether the appellant was negligent as alleged. Negligence is a separate and discrete question. No issue of credibility involving causation or the assessment of damages bears on the issue of negligence. The issue of causation involves facts that are substantially common ground and there is no need to agitate that issue again. The assessment of damages is an entirely separate issue and, likewise, there is no need for it to be the subject of a further trial. Thus, bearing in mind what was said by Gleeson CJ in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 at [15], [19] and [20] (with which McHugh, Gummow and Hayne JJ agreed), I would nevertheless limit the issue in the retrial to the question of negligence.

243 I propose the following orders:

(a) The appeal is upheld.

(b) The orders made by Hoeben J are set aside.

(c) The matter is remitted to the Common Law Division of the Supreme Court for a re-trial on the issue of negligence.

(d) The respondent pay the appellant’s costs of appeal.

(e) The respondent be entitled to a certificate under the Suitors’Fund Act 1951 if otherwise entitled.

(f) The costs of the trial before Hoeben J be costs in the cause.

*****************

Citations

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

Most Recent Citation

Cases Citing This Decision

254

Roads and Traffic Authority v Royal [2008] HCA 19

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54

Cases Cited

42

Statutory Material Cited

6

Rufo v Hosking [2004] NSWCA 391

Gett v Tabet [2009] NSWCA 76

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CITATION:	Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
HEARING DATE(S):	Thursday 4 June 2009, Wednesday 24 June 2009
JUDGMENT DATE:	24 July 2009
JUDGMENT OF:	Beazley JA at 1; Giles JA at 19; Ipp JA at 52
DECISION:	(a) The appeal is upheld. (b) The orders made by Hoeben J are set aside. (c) The matter is remitted to the Common Law Division of the Supreme Court for a re-trial on the issue of negligence. (d) The respondent pay the appellant's costs of appeal. (e) The respondent be entitled to a certificate under the Suitors' Fund Act 1951 if otherwise entitled. (f) The costs of the trial before Hoeben J be costs in the cause. (g) The cross-appeal is dismissed with costs.
CATCHWORDS:	EVIDENCE - admissibility and relevancy - opinion evidence - expert evidence - whether trial judge erred in preferring the opinion of one expert to another where the former had greater expertise - whether trial judge impermissibly took into account own opinions on issues requiring expert testimony - effect of rules of court on admissibility of expert evidence and expert opinion evidence - whether evidence of expert materially interested in the proceedings is admissible. - CAUSATION - material increase in the risk - whether risk created by the tortfeasor came home - use of epidemiological and statistical evidence.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Supreme Court Rules 1970 Suitors' Fund Act 1951 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 558 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 ASIC v Rich [2005] NSWSC 149 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Betts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 Collins Thomson v Clayton [2002] NSWSC 366 Derby & Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990 Dobler v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151 EMI Australia Ltd v BES [1970] 2 NSWR 238 Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190 Festa v R [2001] HCA 72; (2001) 208 CLR 593 FGT Custodians Pty Ltd (formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33 Field v Leeds CC (2000) 32 HLR 618 Flavel v South Australia [2007] SASC 50; (2007) 96 SASR 505 Flounders v Millar [2007] NSWCA 238 Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162 Gett v Tabet [2009] NSWCA 76 In Re JS (a minor) [1980] 1 All ER 1061 James Hardie & Co v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kirch Communication Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485 Li v R [2003] NSWCCA 290; (2003) 139 A Crim R 281 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Liverpool Roman Catholic Archdiocesen Trustees Inc v Goldberg (No 2) [2001] 1 WLR 2337 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 March v Stramare (E & M H) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Myers v Elman [1940] AC 282 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) (No 1) [1995] 1 Lloyd's Rep 455 Payne v Crawford (1992) 3 Tas R 360 Polivitte Ltd v Commercial Union Assurance Co Plc [1987] 1 Lloyd’s Rep 379 R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Regions [2002] EWLA Civ 932 (No 2) [2003] QB 381 R v Mitchell (1997) 130 ACTR 48 Roads & Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 Rondel v Worsley [1969] 1 AC 191 Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 Saunders v Adderley [1999] 1 WLR 884 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Sherman v Nymboida Collieries Pty Ltd [1963] HCA 63; (1963) 109 CLR 580 State Government Insurance Commission v Laube (1984) 37 SASR 31 Strinic v Singh [2009] NSWCA 15 TC by his tutor Sabatino v The State of New South Wales [2001] NSWCA 380 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 Weal v Bottom (1966) 40 ALJR 436 Whitehouse v Jordan [1981] 1 WLR 246 Workers’ Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221
TEXTS CITED:	Cross on Evidence (loose-leaf), Lexis Nexis Au
PARTIES:	Sydney South West Area Health Service (Appellant) Kristy Michelle Stamoulis (Respondent)
FILE NUMBER(S):	CA 40401/08
COUNSEL:	P Menzies QC; C F Hodgson (Appellant) B M J Toomey QC; D R J Toomey (Respondent)
SOLICITORS:	I V Knight, Crown Solicitor's Office (Appellant) McLaughlin & Riordan Solicitors (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 20239/08
LOWER COURT JUDICIAL OFFICER:	Hoeben J
LOWER COURT DATE OF DECISION:	29 October 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	O'Gorman v Sydney South West Area Health Service [2008] NSWSC 1127