Tabet v Mansour - [2007] NSWSC 36

No judgment structure available for this case.

CITATION: Tabet v Mansour & Anor [2007] NSWSC 36

HEARING DATE(S): 19-31 July, 1-3 August, 7-17 August, 24-31 August, 4-6 September, 18-21 September, 27 September, 9 November 2006

JUDGMENT DATE :
9 February 2007

JURISDICTION: Common Law Division
Professional Negligence List

JUDGMENT OF: Studdert J

DECISION: 1. On the plaintiff's claim against the first defendant, verdict and judgment for the first defendant. 2. On the plaintiff's claim against the second defendant, verdict and judgment for the plaintiff in the sum of $610,000. 3. I order that the plaintiff pay the first defendant's costs of the proceedings against the first defendant. 4. I order that the second defendant pay the plaintiff's costs of the plaintiff's proceedings against him.

CATCHWORDS: MEDICAL NEGLIGENCE CLAIM - six year old patient referred to first defendant paediatrician on 28 December 1990 with a history of headaches - hospital admission 29-31 December 1990 - varicella rash by time of discharge - whether first defendant negligent in treatment in failing to detect medulloblastoma - no CT scan to investigate cause of headaches. MEDICAL NEGLIGENCE CLAIM against second defendant - consulted as paediatrician on 11 January 1991 - resolving varicella rash - continuing headaches - provisional diagnosis of meningitis - hospital admission 11 January 1991 - lumbar puncture 13 January 1991 - deterioration 14 January 1991 - CT scan then reveals medulloblastoma - whether second defendant negligent in treatment - whether failure to arrange CT on 13 January 1991 causative of harm. MEDICAL NEGLIGENCE - lost chance of better outcome - entitlement to damages - assessment of value of lost chance. The plaintiff was a six year old child who was referred to the first defendant in his capacity as a specialist paediatrician on 28 December 1990 with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before her discharge from hospital on 31 December 1990, the last occasion on which the first defendant saw the plaintiff. The plaintiff consulted the second defendant, who was a specialist paediatrician on 11 January 1991, with resolving varicella rash and with complaint of continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991 and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated. This procedure disclosed that the plaintiff had a medulloblastoma. The plaintiff was subsequently operated on for a subtotal removal of the medulloblastoma. The plaintiff later had extensive chemotherapy and radiotherapy. The treatment was successful but the plaintiff has been left severely disabled. The plaintiff claimed damages against each defendant, alleging negligence by each defendant in treatment and the failure to detect the medulloblastoma before it was detected. HELD - As to liability: (1) The claim against the first defendant failed - (2) The claim against the second defendant succeeded in that there was found to be a breach of duty of care in not arranging for an urgent CT on 13 January 1991 following an episode occurring on that day - (3) The failure to arrange for that procedure was not proved on the probabilities to be causative of harm, having regard to the plaintiff's pre-existing condition at that time, and to the treatment likely to have been provided if there had been a CT on 13 January 1991 - (4) The plaintiff, however, proved an entitlement to damages for loss of a chance of a better outcome and the avoidance of the damage done on 14 January. Damages: (5) There were four contributors to the totality of the brain damage from which the plaintiff suffers: (i) the medulloblastoma with its seeding and hydrocephalus - (ii) the damage that occurred on 14 January 1991 - (iii) the surgery on 16 January 1991 - (iv) the subsequent radiotherapy treatment - (6) Except for (i), each of the remaining contributors added to the brain damage preceding its contribution - (7) The contribution of the damage that occurred on 14 January to the total damage and resulting disabilities was not greater than twenty-five percent - (8) The loss of the chance of a better outcome and avoidance of the harm suffered on 14 January 1991 was quantified as a forty percent chance - (9) Damages were assessed on the loss of a chance basis at $610,000.

LEGISLATION CITED: Civil Liability Act 2002
Supreme Court Rules
Uniform Civil Procedure Rules

CASES CITED: Assessment of Damages for Personal Injury and Death, Luntz, 4th ed.
Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Chang v Australia Meat Holdings Pty Limited [2001] QCA 51
Chappel v Hart (1998-1999) 195 CLR 232
Daniels v Anderson (1995) 37 NSWLR 438
Elbourne v Gibbs [2006] NSWCA 127
F v R (1983) 33 SASR 189
Gavalas v Singh (2001) 3 VR 404
Gould v Vaggelas (1983-85) 157 CLR 215
Gregg v Scott (2005) 2 AC 176
Halverson & Ors v Dobler [2006] NSWSC 1307
Hatton v Sutherland (2002) 2 AER 1
Hines v Commonwealth of Australia 1995 ATR 81-338
Hole v Hocking (1962) SASR 128
Hotson v East Berkshire Area Health Authority (1987) AC 750
Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638
March v Stramare Pty Limited (1990-1991) 171 CLR 506
Naxakis v Western General Hospital (1999) 197 CLR 269
Patrick Operations Pty Limited v Comcare [2006] NSWCA 142
Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492
Purkess v Crittenden (1965) 114 CLR 164
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Rosniak v GIO (1997) 41 NSWLR 608
Rufo v Hosking (2004) 61 NSWLR 678
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208
Seltsam Pty Limited v McGuinness (2000) 49 NSWLR 262
Simpson v Diamond [2001] NSWSC 925
State of New South Wales v Burton [2006] NSWCA 12
Steppke v National Capital Development Commission (1978) 21 ACTR 23
Tabet by her tutor Sheiban v Mansour & Anor [2006] NSWSC 754
Warringah Shire Council v Jamieson (unreported, NSWCA, 19 December 1980)
Watts v Rake (1960) 108 CLR 158
Wilsher v Essex Area Health Authority (1988) 1 AC 1074

PARTIES: Reema Tabet by her tutor Ghassan Sheiban (Plaintiff)
Albert Mansour (1st Defendant)
Maurice Gett (2nd Defendant)

FILE NUMBER(S): SC 20239/01

COUNSEL: G.B.H. Hall QC/Dr R. Pincus (Plaintiff)
M.T. McCulloch SC/T. Berberian (Defendants)

SOLICITORS: Millar Goddard (Plaintiff)
Blake Dawson Waldron (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST

STUDDERT J

Friday 9 February 2007
20239/01 REEMA TABET by her tutor GHASSAN SHEIBAN v ALBERT MANSOUR & ANOR

INDEX

Paragraph

Introductory outline of events 3

The case against the first defendant
The history of headaches 20
The course of events between 28 and 31 December 1990 29
Was Dr Mansour negligent? 49
The plaintiff is referred to Dr Gett 84
The case against the second defendant 89
The course of events between 11-16 January 1991 89
The negligence alleged 117
Finding as to negligence 193
The issue of damages 194
The claim for the use of the parents' car 211
The claim for loss of benefits accruing of marriage 213
The claim concerning the pool 218
Principles applicable to the issue of causation and to
the assessment of damages 221
Was the lumbar puncture causative of the plaintiff's
deterioration on 14 January 1991 226
The consequences of the failure to arrange for a CT scan
on 13 January 1991 272
The plaintiff's condition immediately prior to 11.00 am on
13 January 1991 309
The deterioration on 14 January 1991 324
The causative significance of the operation and subsequent
treatment 335
Entitlement to damages for loss of a chance 353
The assessment of the value of the lost chance 380
Costs 435
Formal orders 442
JUDGMENT

1 HIS HONOUR: The plaintiff, Reema Catherine Tabet, brings this claim against the first defendant, Albert Mansour, and the second defendant, Maurice Gett. The events giving rise to the plaintiff's claim occurred in December 1990 and January 1991 when the plaintiff was six years of age. Each of the defendants was, at relevant times, a paediatrician and each of the defendants played a role in the treatment of the plaintiff for a condition that led to her attendance at and admission to Royal Alexandra Hospital for Children in late 1990 and during 1991.

2 It is claimed against the defendants that each of them was negligent in his treatment of the plaintiff. Each defendant has denied any liability. Before turning to consider the way in which it is claimed on the plaintiff's behalf that the liability of each defendant here arises, it is necessary to record a broad outline of events in the period in question.

Introductory outline of events

3 In the latter part of 1990, some time after the plaintiff's sixth birthday on 6 November 1990, the plaintiff became unwell and suffered from headaches and vomiting. The plaintiff's maternal grandfather and his son were general practitioners practising in the same professional rooms, and each of these doctors provided medical attention to the plaintiff and other family members from time to time. The principal family doctor was the plaintiff's grandfather (since deceased).

4 There is some issue as to when the plaintiff's grandfather first became concerned in the plaintiff's treatment for the headaches and vomiting, and it will be necessary for me to consider this question presently. However, certainly by 26 December 1990, and both parents of the plaintiff contend earlier, the plaintiff's grandfather saw the plaintiff for these problems. Notes of the medical practice conducted by the grandfather and his son record that there was a consultation on 26 December 1990:

"H/V [home visit] 1/52. Vomiting, headache, no dehydration, no diarrhoea, temp 37.4, Stematil sup 5 mg. Abdo () No jaundice. No meningism. For diet."

5 Both the plaintiff's mother and the plaintiff's father gave evidence that there was a further consultation at that family practice on 28 December 1990. Dr Asaad Sheiban (the plaintiff's uncle) gave evidence to the like effect, and on that date the following entry appears in the practice record:

"28.12.1990 Persistent headache + vomiting. Referred to Dr Mansour."

6 The letter of referral written by the plaintiff's uncle and dated 28 December 1990 recorded a history of headaches and vomiting for 10/7. It reads:

7 The first defendant saw the plaintiff on 28 December at the Children's Hospital and following examination referred her to the casualty department for urine and throat swab tests. The first defendant prescribed a course of penicillin, not to be commenced until after a urine specimen had been taken. The plaintiff was not admitted to hospital, but allowed to go home.

8 The following day the plaintiff was brought back to the hospital by her parents with another referral note written by her uncle. This note reads:

9 The plaintiff was admitted to hospital on 29 December 1990 and remained there until 31 December 1990. In that period she was under the care of the first defendant. By the date of her discharge, a chicken pox rash had appeared and this followed upon the presentation of a rash upon the plaintiff's brother some fourteen days previously. By 31 December 1990 the tests referred to had proved to be negative and the first defendant discharged the plaintiff from hospital.

10 The plaintiff thereafter remained at home until 11 January 1991. In that period the plaintiff was very obviously suffering from chicken pox with a severe and troublesome rash but the headaches and vomiting persisted and the plaintiff was readmitted to hospital, the readmission having been arranged by either the plaintiff's grandfather or her uncle.

11 This time the plaintiff came under the care of the second defendant since the first defendant was on leave. The plaintiff was readmitted and the second defendant considered that the plaintiff, apart from having resolving chicken pox rash, was suffering from meningitis. He arranged for a lumbar puncture, and an unsuccessful attempt to carry this procedure out took place that same day.

12 The plaintiff was admitted to a ward where, unhappily, her condition did not improve. A lumbar puncture was performed on 13 January 1991 and a CT scan was carried out on 14 January 1991. This evidenced a tumour termed a medulloblastoma. A right frontal intraventricular drain was inserted to relieve intracranial pressure that developed by 14 January, and then, on 16 January 1999, Mr Johnston, assisted by Dr Maixner, operated to remove the tumour. Surgery was successful only in part, leaving an attachment in the floor of the fourth ventricle. Some spread of the tumour over portion of the cerebellum was visible.

13 What has been referred to as "seeding" occurred. When it commenced is an issue to which I will later return. However, chemotherapy treatment was undertaken between 26 February 1991 and 7 May 1991. Radiotherapy was undertaken between 20 May 1991 and 2 July 1991.

14 The plaintiff has survived but is very significantly disabled.

15 This case presents very complex issues, each of which will require close examination.

16 I will later express the allegations of negligence against both defendants in closer detail, but will broadly summarise the position now. Central to the case against the first defendant is the allegation that he should have arranged for the plaintiff to have a CT scan in the period that the plaintiff was under his care between 28 December and 31 December 1990. Had he done so, it is contended that the medulloblastoma would have been detected and it is alleged that the timing and the course of the plaintiff's treatment would have been different, and the outcome for the plaintiff would have been different also.

17 Central to the case against the second defendant is the allegation that he should have arranged a CT scan when the plaintiff came under his care on 11 January 1991, and certainly before the need for the intraventricular drain arose on 14 January 1991. Further, it is alleged against the second defendant that he should not have ordered the lumbar puncture, and that this procedure when undertaken on 13 January 1991 caused the plaintiff's deterioration on 14 January 1991. It is alleged against the second defendant that the prompt arrangement of a CT scan and the avoidance of the lumbar puncture would again have resulted in treatment different in timing and content from the treatment in fact undertaken, with a better outcome.

18 From this broad outline I will proceed to consider in closer detail the allegations that have been pursued against each of the defendants against the background of the detail of the plaintiff's presentation and treatment whilst under the care of the first and the second defendants respectively.

19 The hearing of this cause occupied thirty-six sitting days. There were many witnesses, including many experts, and there is a very considerable volume of exhibits. It would not be practicable nor useful to undertake an exhaustive review of the evidence, and I must necessarily be selective in my references to the evidence.

The case against the first defendant

The history of headaches

20 The history of headaches and vomiting available to the first defendant when he first saw the plaintiff and, indeed, whilst the plaintiff was under his care is a matter to which considerable importance was attached in the plaintiff's case. It is clear that the referral letter from Dr Sheiban alerted the first defendant to a history of headaches and vomiting for ten days, that is from about 18 December 1990 (see [6] above). However, the plaintiff's mother gave evidence that the plaintiff started vomiting and complaining of headache before 18 December 1990. Mrs Tabet's evidence was that the first complaints were closer to the plaintiff's sixth birthday than that, and, according to Mrs Tabet, she contacted her father, Dr Sheiban, either in late November or early December. Mrs Tabet said that her father then arranged for her to see the first defendant and that she and the plaintiff saw the first defendant at the hospital. Mrs Tabet had no referral letter from her father on this first occasion and, according to Mrs Tabet, the first defendant prescribed an antibiotic and advised of the need for legumes. Mrs Tabet said that she gave her daughter baked beans following this advice, and her daughter was unable to keep them down.

21 The plaintiff's father gave evidence to the effect that his wife saw the first defendant with the plaintiff early in December 1990 but Mr Tabet was not present at that consultation. According to Mr Tabet, after that visit his wife told him that the first defendant had prescribed antibiotics.

22 The first defendant gave evidence of seeing the plaintiff in a consulting room on 28 December 1990 but he had no recollection of seeing her before that date.

23 In determining whether there was a consultation with the first defendant before 28 December 1990, it is relevant to have regard to the evidence of Dr Sheiban and to the records kept in the practice of the plaintiff's grandfather and her uncle.

24 The records of the practice do not refer to any presentation to that practice by the plaintiff with complaints of vomiting and headache before 26 December 1990 and, indeed, as already recorded, the history concerning vomiting and headaches on 26 December 1990 was that they had been occurring for one week, that is from 19 December 1990. There are two earlier 1990 entries relating to the plaintiff. On 28 September 1990 there is an entry "enuresis"; and on 8 November 1990 there is an entry "fever 2 days - mild cough". There are then the two entries previously referred to on 26 December 1990 and 28 December 1990, on each of which occasions complaints of vomiting and headache are recorded.

25 Dr Sheiban Snr is deceased but Dr Asaad Sheiban gave evidence identifying the patient card records. Dr Sheiban said that it was about mid-December that the plaintiff's complaints of headache and vomiting were drawn to his attention. The referral letter on 28 December 1990 was written by Dr Asaad Sheiban, and his evidence was that he obtained a history of one week of vomiting and headache from the plaintiff's parents.

26 Dr Sheiban acknowledged in his evidence the importance of the content of the referral note, and in both the note of 28 December and the note of 29 December 1990 the complaint is consistently recorded of headaches and vomiting back to approximately 18 December 1990: ten days as at 28 December and "more than ten days" as at 29 December.

27 In the circumstances, it seems to me that the most reliable evidence as to when the complaints of headaches and vomiting began is to be found in the plaintiff's patient notes as kept in the practice of Dr Sheiban. I am satisfied on the evidence that there was a close family relationship between the plaintiff's family and her uncle and her grandfather, and if there had been a complaint of headaches and vomiting prompting an earlier referral to the first defendant, the probability is that there would have been an earlier record in the practice notes in relation to earlier complaints. Moreover, the probability is, had it been the case that there was an earlier referral, that there would have been a referral note accompanying it. Further, the referral notes that were written in late December would have recorded a different history.

28 In the circumstances, I am not persuaded by the evidence given by the plaintiff's parents that the first defendant saw the plaintiff at any time prior to 28 December 1990. I do not accept that he did so, and I accept that when the first defendant first saw the plaintiff, he had a history from the referral note which fixed the commencement date of the complaints of headache and vomiting as being about 18 December 1990.

The course of events between 28 and 31 December 1990

29 As a background against which to consider the case as pursued against the first defendant, I will record my findings as to what occurred during the period from the plaintiff's presentation to the first defendant on 28 December 1990 and her discharge from hospital on 31 December 1990.

30 I am satisfied that Dr Mansour saw the plaintiff and her parents in an outpatients' consulting room such as he described. The plaintiff had first seen the triage nurse who recorded the plaintiff's name and address, her date of birth and the time of her attendance (see Exhibit A, p 323).

31 When he saw the plaintiff for the first time, Dr Mansour had the benefit of the history in the letter of referral. He also had a further history from both Mr and Mrs Tabet. However, for reasons earlier indicated, I do not find that Dr Mansour had seen the plaintiff at any time prior to 28 December 1990, and I do not find that the plaintiff was given any history of headaches predating the time frame in the letter of referral presented on 28 December 1990.

32 Both Mr and Mrs Tabet said that Dr Mansour examined the plaintiff on 28 December 1990, and I find that he did so. I am satisfied that the handwriting appearing on Exhibit A p 323 records Dr Mansour's notes taken on the occasion of his first consultation. He recorded a history of vomiting after meals from 18 December 1990, increasing from 23, 24 and 25 December, and he recorded that the plaintiff was complaining of frontal headaches increasing in severity from 23 December 1990. He recorded a history that the plaintiff was sleeping well at night but that she was less active. He noted the plaintiff had suffered two previous urinary tract infections but that at present she was experiencing no pain when urinating, there was no fever and her bowels were functioning normally. Dr Mansour noted a loss of one kilogram in weight in the last two weeks. Significantly, he noted that the plaintiff's brother had varicella and that his rash had appeared on 16 December 1990. On examination, Dr Mansour detected no neck stiffness and, in general, no abnormality other than noting red spots on her tonsils. Dr Mansour's notes on examination record the following:

Fundi Cranials No bruits

Abdo soft BS [bowel sounds] N [normal] No tenderness

Chest No lymphadenopathy

Throat - red - spots on tonsils. Ears ok

IMP [impression]? possibly URTI [upper respiratory tract infection] ? UTI [urinary tract infection]

33 As previously recorded, Dr Mansour sent the plaintiff, with her parents, to the casualty department for the tests and he prescribed penicillin. The plaintiff was allowed to go home.

34 I am satisfied from the evidence of the plaintiff's parents that they remained concerned about their daughter, that she experienced headache overnight and that she vomited on the morning of 29 December 1990. Hence, the second referral letter was obtained and presented when the plaintiff's parents took their daughter back to the hospital on 29 December 1990.

35 On 29 December 1990 the plaintiff underwent two medical examinations. The first of these was conducted by Dr Durman, and that doctor's notes appear in Exhibit A at p 324. The writing is difficult to read but the history recorded includes a note of intermittent vomiting, headaches and abdominal pain for ten days. The notes indicate that Dr Durman's examination included a neurological examination and that the fundi were normal. The headaches were recorded as being intermittent and frontal.

36 The other medical examination conducted on 29 December 1990 was not conducted by Dr Mansour but by Dr Williams. Notes of his examination appear in Exhibit B at p 553. Dr Williams noted that the plaintiff was alert and orientated. He noted that the plaintiff was not distressed but he detected in the mucosa a sign that the fluid intake may have been inadequate. Dr Williams' notes record, consistently with Dr Mansour's evidence to the like effect, that he spoke to Dr Mansour and Dr Mansour instructed him to admit the plaintiff for a trial of oral fluids. Dr Mansour further instructed, according to Dr Williams' notes, that the plaintiff be given no penicillin whilst the test results from the previous day were awaited.

37 Dr Mansour gave evidence (T 269) that when he decided that the plaintiff was dehydrated and that she should be admitted to hospital, foremost in his mind was the exclusion of a urinary tract infection, depending on the test results, and the other possibility was that this could be the beginnings of a chicken pox illness.

38 The nursing notes for 29 and 30 December appear in Exhibit B p 554:

(a) The first entry was made at 5.00 pm. That entry noted: "headache and vomiting and has been unwell for 10 days. Afebrile in no apparent distress. Looks unwell and lethargic". It is also noted that the plaintiff tolerated one iceblock, and there was no vomiting.

(b) The next note was made at 8.50 pm on 29 December 1990 and the author wrote that the plaintiff was a "well looking child complaining of stomach pain". It is also noted that the plaintiff tolerated an iceblock and a few Jatz biscuits. There was no vomiting and no fever.

39 Dr Mansour examined the plaintiff at 12.15 pm on 30 December 1990. His notes at that time are to be found in Exhibit B p 554. They read: "Well, tolerating fluids. No headaches. Start light diet." Then there is an arrow indicating to proceed to "normal diet. For full blood count tomorrow." (I have been assisted by Dr Mansour's evidence at T 270 in interpreting what he has written, and I accept that interpretation, which I do not understand to have been challenged.)

40 There is then an entry on 30 December 1990 at 2.00 pm. This is a nursing note and records that the plaintiff "has had a satisfactory day". It is noted that the plaintiff has no fever and there has been no vomiting. There is a complaint of abdominal pain and of headache "getting better since prescription of Panadol at 8.30 am". It was noted the plaintiff was tolerating clear fluids well.

41 There is a further nursing note for 30 December at 10.00 pm. It is recorded that the plaintiff was given Panadol at 4.05 pm for abdominal cramps and headache and that the plaintiff had vomited and had been refusing fluids. However, she had had two ice creams.

42 The next nursing note is on 31 December 1990. It is recorded that the plaintiff complained of headache on waking at 6.00 am that morning and was given Panadol which "appeared to have the desired effect". It was noted that the plaintiff was eating breakfast and drinking well.

43 Then the plaintiff was seen by Dr Pickford at 11.45 am, according to the hospital records. Dr Pickford, who Dr Mansour identified as a resident medical officer, wrote (see p 555 Exhibit B):

Few small vesicular lesions on neck and behind ear and symph pubis this am.

Mother feels child ok to go home after the results of the culture and blood count are available.

? early varicella lesions"

44 That entry is followed by Dr Mansour's entry at 1.30 pm:

45 According to Dr Mansour, before discharging the plaintiff he examined her and he saw chicken pox lesions. Dr Mansour said that he examined the plaintiff's abdomen and found no abdominal signs. Dr Mansour said that he requested the plaintiff to stand and walk to check her balance and coordination. He also said that he checked her eyes with an ophthalmoscope but that he did not record that detail because Dr Pickford had already informed him of her observations, including her observations of the eyes. At the time of deciding to discharge the plaintiff from hospital, Dr Mansour had arrived at a diagnosis that the plaintiff was suffering from chicken pox and that her preceding symptoms were consistent with that diagnosis. I accept the evidence that Dr Mansour gave as to his examination 31 December 1990, his findings and his diagnosis held at that time.

46 I accept, as Mr Tabet said, that Dr Mansour told him: "It is chicken pox. Nothing to worry about. You can take her home now" (T 40). I also accept that he told Mrs Tabet that he was going on holidays and if need be they could see a relieving doctor (T 129). Dr Mansour said that he told the Tabets that if the plaintiff remained unwell, specifically with vomiting, it may be appropriate at some later stage to do a CT scan (T 274). Mrs Tabet said there was no mention of a CT scan (T 129), but whether there was mention or not, it is clear that Dr Mansour recorded in the hospital records no suggestion, recommendation or notation about the possibility of a CT scan being done in the future.

47 Dr Mansour did not see the plaintiff again, at least for treatment, after her discharge from hospital on 31 December 1990, and I will proceed to examine the case against the first defendant having regard to the findings I have now expressed.

48 Before doing so, I record these relevant principles:

(i) At all material times Dr Mansour was practising as, and was treating the plaintiff as, a specialist paediatrician. He was senior consultant paediatrician at the Children's Hospital. Dr Mansour owed to the plaintiff a duty to exercise reasonable care in his treatment of and his advice concerning the plaintiff. The standard of care required of him was the standard of the ordinary skilled person exercising and professing to have that special skill: see Rogers v Whitaker (1992) 175 CLR 479 especially at 487; F v R (1983) 33 SASR 189 per King CJ at 190-191; and Rosenberg v Percival (2001) 205 CLR 434.

Rosenberg

"There is an aspect of such a question which may form an important part of the context in which a trial judge considers the issue of causation. In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated…"

Was Dr Mansour negligent

49 The negligence alleged against Dr Mansour in para 34 of the amended statement of claim was expressed as follows:

"(a) Wrongly attributed Reema's signs and symptoms of persistent headache, nausea and vomiting to a pre-chicken pox condition when he knew or ought to have known that:

A. Reema had been suffering from persistent headache and vomiting from at least 18 December 1990;

B. Reema's brother's chicken pox rash first appeared on 16 December 1990;

C. The pre-rash prodromal period for chicken pox is short, usually 24 hours, whereas Reema has signs and symptoms 13 days before her chicken pox rash appeared.

(b) Failed to arrange for a CT scan of the brain when he examined Reema on 28 December 1990 or during her admission between 29 and 31 December 1990 when he knew or ought to have known that her signs and symptoms were consistent with raised intracranial pressure, the cause of which could have been a brain tumour, and

(c) Failed to diagnose Reema's brain tumour."

50 Further particulars were given by letter dated 30 June 2006. I do not propose to set out the content of that letter because ultimately the case as presented focused upon the allegation that Dr Mansour was negligent in not ordering a CT scan, having regard to the plaintiff's history and presentation. It was also submitted that even if he should not have arranged for a CT scan by 31 December 1990, he should have passed on a recommendation or direction that such a scan be undertaken if the plaintiff's symptoms persisted or returned in January 1991. There were in this case many expressions of expert opinion concerning the issue as to whether a CT scan should have been carried out, and, if so, at what point of time. It will be necessary to return to this body of expert opinion when considering the case against the second defendant, Dr Gett, but I propose to review the evidence now to the extent that it addresses the issue as to whether Dr Mansour should have arranged for a CT scan to be undertaken.

51 Mr Johnston was the neurosurgeon under whose care the plaintiff came following the detection of the medulloblastoma. In his report to the defendants' solicitor, which report became Exhibit 11, he expressed the view that he would not have ordered a CT scan upon the plaintiff's presentation at the hospital on 11 January 1991. I shall return to that report when considering the case against the second defendant. However, consistently with the content of the letter, Exhibit 11, Mr Johnston was of the opinion that a CT scan was not required in December 1990. He was asked these questions and gave these answers to Dr Pincus when cross examined (T 721):

"Q. Accepting for the moment your view that it would have been - I am not sure whether I have this right, my friend will correct me if I am wrong - a possible thing, would it be reasonable not to do a CT just with the history of ten days, I think you said?

A. I would say that it would be reasonable not to do a CT on the basis of that, particularly in a patient that, you know, that might require or would require a general anaesthetic, who has perhaps some evidence of a developing infection. It would definitely be not a good idea to do a CT. There is not enough evidence to do it there in my mind, and there is some indication not to do it. So it's, as I think, I would take - I am not a paediatrician obviously - but I would take it to be a sort of observational position to be taken here awaiting these results."

(The results to which Mr Johnston was referring were the culture results of the tests done on 28 December.)

52 And later (at T 727):

53 More than once it was suggested in cross examination that Mr Johnston was biased in favour of the defendants, a suggestion which he refuted. Having observed the witness closely and listened to his evidence, the impression I formed of Mr Johnston was a very favourable one. He certainly conveyed that he has firm views in this case but I find that they are views which he genuinely holds.

54 Dr Allen is a specialist paediatrician. He did not consider that the first defendant was open to criticism for not having ordered a CT scan. I refer to his evidence as to this (T 1131):

55 Then, at T 1153:

"Q. Doctor, you're not answering my question. The history he got was of headaches and vomiting from 18 December onwards and that history was not explained by the development of a rash of chicken pox on 30 December 1990?
A. You could say that.

56 Then (at T 1159), referring to the time of her discharge from hospital on 31 December 1990:

"Q. She is sent home?
A. She is sent home and 'her mother feels child okay. Mild headache this morning. No vomiting. Feeling better.' So why, as a clinician, would you not want to send her home? Children get better much more quickly at home than they do in hospital. They are more likely to get other infections in hospital.

57 Dr Hopkins retired in 2002 but prior to retirement he was a child neurologist at the Royal Children's Hospital in Melbourne for some thirty-six years. The effect of his evidence was that if there had been headaches from the beginning of December 1990, it was his opinion that the plaintiff should have been required to undergo a CT scan during her first admission to hospital, but given a history of headaches from 18 December only he was not critical of the first defendant in not arranging for a CT scan. That, as I see it, is the effect of his evidence at T 1025:

"HIS HONOUR: Yes. I note your objection. But of course you modified your view about whether there should have been a CT scan as at the first admission, haven't you? If I understood your earlier evidence correctly.
A. I think if I'd been the person in charge of that child the child would have had a CT scan during the first admission. But I do not think it could be regarded as being something that a general paediatrician would have recognised the need for.

Q. I rather thought that you'd told the Court that when you were expressing the view earlier, you did so on the basis there had been a history of headaches and vomiting from the beginning of December?

A. Yes, but in later evidence put before me it seems that it was more likely, I think it was about the 15th, 16th or 18th - -

58 Dr Knight is a paediatric intensive care physician attached to the Princess Margaret Hospital for Children in Perth. It was his opinion that a CT scan was required on 13 January 1991 after the abnormal episode recorded in Exhibit C at 581-582. However, he did not perceive that there was a need to do a CT scan as at 31 December 1990 and he was not critical of Dr Mansour's treatment of the plaintiff. I refer to his evidence (at T 1232):

"Q. If it were the fact that this child exhibited only one focal neurological sign, that is, the one observed on the 13th of January 1991, was the absence of focal neurological signs in this child in your view a sufficient reason not to undertake a CT scan?

HIS HONOUR: Q. In what point of time?

59 Then (at T 1238):

60 Mr Klug is a specialist neurosurgeon who has been appointed to the Royal Children's Hospital since 1971. He was asked to express an opinion as to whether Dr Mansour should have arranged for a CT scan to be done. I refer to his evidence at T 1711:

"Q. You are aware, aren't you, that Dr Mansour was the consultant paediatrician under whose care the patient came from 28 to 31 December 1990 inclusive?
A. That's my understanding, yes.

61 Mr Wallace is a neurosurgeon carrying on practice in Melbourne and he is a consultant surgeon at the Royal Children's Hospital in Melbourne. His report of 14 December 2005 voiced no criticism of Dr Mansour for failing to order a CT scan. Referring to that report, Mr Wallace was asked this question and gave this answer in cross examination (at T 1391):

62 However, since it was Dr Gett who arranged for the lumbar puncture to be done and not Dr Mansour, it would seem that Mr Wallace was referring to Dr Gett in the context of giving the above answer. The cross examination proceeded (at T 1391-1392):

"Q. Do you agree though that on the presentation of this patient to Dr Mansour, he was entitled to take a view that she had pre-chicken pox symptoms; that is when she first presented on 28 December 1990?
A. Could I ask, was the rash present at that time?

Q. No. I'd ask you to assume that the rash first presented itself on 31 December 1990?
A. I think that with a history of contact within the accepted incubation period for chicken pox that's a reasonable thing to think in isolation. But if you've had headache and vomiting since before the chicken pox had incubated - -

Q. Since when did you assume?
A. I thought the headache and vomiting began 2 days after contact with the brother with chicken pox.

Q. What did you assume about its frequency?
A. That it was fairly regular.

63 I see no persuasive reason expressed in the evidence of Mr Wallace pointing to the need for Dr Mansour to have arranged for a CT scan by 31 December.

64 As I see it, the one witness who expresses the firm opinion that Dr Mansour should have had a CT scan carried out was Dr Williams. Dr Williams is a specialist paediatrician who carries on practise at Menai. He is a former specialist at the Children's Hospital. Dr Williams considered that there was an urgent need from the time that the plaintiff first presented for a CT scan to be undertaken, and this was because of the history of headaches at that time over a ten day period. Dr Williams did not express the opinion that there was an urgent need for a CT scan on 28 December 1990 when he wrote his report on 6 November 2000 (Exhibit M) but he stated this opinion in his lengthy report of 26 May 2006:

"I am of the opinion that there was sufficient signs and symptoms of an intracranial tumour and that a CT scan of the brain was urgently indicated and a lumbar puncture was contraindicated. Dr Mansour did not make definitive arrangements for follow up with the parents."

(See p 11 of the report)

65 In his evidence before the Court, Dr Williams was asked these questions and gave these answers referable to the above extract from his report (at T 787):

66 Later (at T 802):

67 Then, later (at T 804), Dr Williams opined that Dr Mansour should have suspected raised intracranial pressure on 28 December and he proceeded to say (at T 895):

"A. The symptoms before Dr Mansour on 28 December 1990 was that of headaches and vomiting. The child was under his care for the next three days and in that time a prudent paediatrician should have been able to diagnose, on his clinical examination and on the history, a suspicion of raised intracranial pressure. That could have been confirmed in that period of hospitalisation. That's my opinion."

68 He was then asked these questions and gave these answers (T 895):

"McCULLOCH: Q. There are two parts to that answer, if I may say so with respect; the first is that his examination should have elicited signs to confirm clinically the suspicion of raised intracranial pressure, is that correct?
A. That's correct.

Q. And the second is that he ought to have done something to confirm that suspicion, am I correct?
A. That's correct.

69 Later, in the course of cross examination, he agreed that there was no requirement that a CT scan should have been ordered on 29 December (T 925); nor, having been taken to the nursing notes at 7.00 am on 30 December, up to the time of that entry (T 929). Dr Williams then agreed that there was no indication for a CT scan as at 12.15 pm on 30 December 1990. However, he considered that there was a need for a CT scan prior to the time of discharge on 31 December 1990. Dr Williams gave this evidence (at T 934):

"Q. This is the point of time you say there should have been a CT scan?
A. This is the point of time to say, with symptoms of vomiting and headaches, let's do a CT scan, because we don't have adequate explanation, and let's consult a neurologist to see whether this child has another pathology that could have make sense of the symptoms.

70 It emerged it was Dr Williams' understanding that Dr Mansour did no full neurological examination before the plaintiff was discharged but, whether a full neurological examination was conducted or not, it made no difference to Dr Williams' opinion.

71 Mr McCulloch submitted that I should attach no weight to the evidence given by Dr Williams. He submitted that Dr Williams repeatedly expressed opinions which amounted to saying what he would have done in the circumstances rather than expressing a view as to what a reasonable clinician would have done: see the cross examination T 845-846. He submitted that Dr Williams' criticism of Dr Mansour's approach was based in part upon the mistaken understanding that Dr Mansour did not do a full neurological examination before he discharged the plaintiff. Whilst that is true, what Dr Williams based his opinion on was the duration of the history of headaches and vomiting. Mr McCulloch submitted that the doctor did not give his evidence in an objective manner and that he was evasive.

72 It is plain from the review of the evidence that I have undertaken as to whether the exercise of reasonable care required of Dr Mansour that he arrange for a CT scan to be undertaken, that Dr Williams is in the minority in the view that he has expressed. Of course, it does not necessarily follow that I should not find his evidence persuasive. However, there is some substance in the submissions of Mr McCulloch recorded above. Moreover, Dr Williams wrote of "signs and symptoms" of an intracranial tumour in his report of 26 May 2006, and conceded in evidence there were no signs whilst the plaintiff was under Dr Mansour's care. In addition, in contrast to what he had written, Dr Williams ultimately said in cross examination that it was not until 31 December 1990 that a CT scan should have been undertaken. No sign emerged on that date. What did emerge then were the first of the varicella lesions.

73 The issues in this cause are not to be determined by counting the number of experts supporting a party on a particular issue, but I find myself persuaded by those witnesses who have expressed the contrary view to that voiced by Dr Williams.

74 Moreover, I am influenced by the fact as I find it that in none of the various neurological examinations conducted between 28 and 31 December 1990 were there any neurological abnormalities detected. Further, I am satisfied that the chicken pox rash was evident at the time of discharge.

75 It was Dr Mansour's evidence that during the incubation period, which can last from ten to twenty-one days, there can be a multitude of symptoms, including headache, lassitude and weakness. Dr Mansour was asked these questions and gave these answers (T 1656):

"Q. See, one couldn't attribute that history of headaches from 18 December onwards till when the rash appeared as being part of the prodromal period for chickenpox?
A. Using specifically the term prodromal period, you are correct.

Q. Right. So that the history you had then, the history of headaches and vomiting, was inconsistent with a diagnosis of varicella? Put it another way, it was not explained by the emergence of varicella on the 31st?
A. I disagree.

76 Dr Mansour's evidence that there can be symptoms during the entire incubation period referable to the varicella finds no support in the other evidence in this case, which seems to confine varicella related symptoms to the prodromal period. Nevertheless, having closely considered the evidence and the competing submissions, I am not persuaded that the exercise of reasonable care required of Dr Mansour that he arrange for a CT scan at any point of time prior to the plaintiff's discharge from hospital on 31 December 1990.

77 Was the first defendant negligent in failing to pass on a recommendation or direction that a scan should be undertaken if the plaintiff's symptoms persisted or returned in January 1991?

78 Dr Mansour said that the appearance of the chicken pox rash sufficed to account for the plaintiff's symptoms and that the plaintiff had no abnormal neurological signs. Dr Mansour acknowledged that he made no entry in the hospital records to the effect that the plaintiff should have a CT if she represented, but his evidence was that he had no concerns that the plaintiff was going to represent (T 1666). Earlier, Dr Mansour gave these answers to these questions (at T 1666):

" HALL: Q. I suggest to you Dr Mansour, that you needed to make a note in the hospital records that if she re-presented to the hospital with a continuing history of headache, she should be submitted to CT scanning?
A. That question, I have to pre-empt it first by stating that at the time of discharge I had concluded that the diagnosis was varicella which was causing her symptomatology. And I always do this in my practice, when any child presents with headache, I cover myself and say if headaches were to persist, severe headaches persist and no other cause to be found and neurologically to examination, the child is normal, but the headaches are persisting, then a CT scan is indicated and that's what I basically had said at the point of discharge to the parents. But in my mind, I was well and truly comfortable with the diagnosis that this is a child who had varicella with a long incubation period with symptomatology causing severe abdominal pain more than the headache, right, the abdominal pain was more than the headache.

79 I accept the above answers as being truthful and as expressing Dr Mansour's conviction as to his diagnosis.

80 Further, I do not consider it to have been unreasonable for Dr Mansour to have refrained from recording any recommendation or suggestion as to a CT scan being undertaken in the future.

81 Moreover, the evidence of Dr Gett is that he did not see the records concerning the plaintiff's hospital admission during December 1990 so that if Dr Mansour had made a recommendation or a suggestion recorded in the hospital notes, Dr Gett would not have seen it.

82 In the circumstances of this case, I am not persuaded that Dr Mansour was in breach of his duty of care towards the plaintiff by failing to record an entry suggesting or recommending a CT scan if the plaintiff represented with continuing headaches in January 1991.

83 I conclude that the plaintiff has not proved negligence by Dr Mansour during the period that the plaintiff was under his care and, accordingly, the action brought against the first defendant must fail.

The plaintiff is referred to Dr Gett

84 I accept the descriptions of the plaintiff's parents and of Dr Sheiban as to the severity of the symptoms from which the plaintiff suffered between the time of her discharge from hospital on 31 December 1990 and the time of her readmission to hospital eleven days later.

85 Mr Tabet described the chicken pox lesions as very severe, all over the plaintiff's body and face, and he said that the plaintiff's tongue was affected as well. Mr Tabet gave the following evidence (T 41):

"Q. Apart from the chickenpox, what did you notice about her health?
A. She was very I could say lethargic because she was not active, tired, not eating and she was losing weight as well.

Q. Did you notice if you tried to get her to eat something what would happen?
A. She wasn't eating that much. We tried fluids, just mostly fluids, but during that period she had a couple of vomits.

Q. Did she make a complaint about any other part of her body apart from vomiting?
A. Tummy pain, some headaches, but she complained more about the rash and the things on the body.

Q. She was having some headaches, is that right?
A. Yes.

Q. Over the ensuing days, how was her health?
A. She wasn't that well.

OBJECTION.

HIS HONOUR: You can only tell us what you observed or what she said, do you understand?
A. Yes.

OBJECTION. PRESSED.

86 When asked about the plaintiff's condition on 11 January, Mr Tabet gave this evidence (T 41-42):

"HALL: Q. The following day, what happened?
A. The following day--

Q. That is, 11 January.
A. I think she was the same or a bit worse than the day before.

Q. When you say she was the same, what, if anything, did you notice, first of all, in relation to vomiting?
A. I could say inactive, pale, tired, complaining of pain.

Q. Vomiting?
A. I think she vomited, yes.

87 Mrs Tabet gave the following evidence (at T 129-130):

"Q. Well, now, I think you went home with your daughter? [referring to the date of discharge by Dr Mansour]
A. Yes.

Q. Did you notice something about the rash that she developed, as distinct from the rash that Eddy had had?
A. Yes. It was very, very noticeable. She suffered a week of very, very severe rash. She had it in her mouth. Around her eyes. It was much, much worse. My son had an almost un-noticeable rash, and no other symptoms at all. With her, she had quite a bad rash, everywhere.

Q. Well, now, during that week that she had the rash, did you notice anything else about her health, apart from the rash?
A. She was continuously in the same thing. She was still in the same pattern. The same vomiting. The headache. I was constantly - I remember trying to make her light meals, like soups, and things she could eat and swallow, but she wasn't really holding down much food or fluid. The thing I noticed most was she was getting very pale and losing a lot of weight. She lost weight, quite a lot of weight, during that period.

Q. Did you notice anything about her energy level?
A. Not much energy, no. She didn't have much energy at all. She wasn't doing what she would normally do. She was lying down and sitting around. She wasn't interacting.

88 Dr Sheiban said that he saw his niece on average every second day after her discharge from hospital on 31 December 1990, and that she continued to complain of "headaches and vomiting and abdominal pain" (T 228). According to Dr Sheiban, there were days when the plaintiff would lie in bed and would refuse to eat, and this was unusual for her. Dr Sheiban did not consider this "a usual presentation of chicken pox" (T 229). Dr Sheiban discussed Reema with his father and they decided on another specialist referral, so Dr Sheiban Snr spoke to Dr Gett in the absence of Dr Mansour. The arrangement was made for the plaintiff to be taken back to the hospital to see Dr Gett.

The case against the second defendant

89 Before considering the case as pursued against the second defendant, I will record my findings as to what occurred between 11 January 1991, when the plaintiff was readmitted to hospital, and 16 January 1991, when the operation occurred for the removal of the medulloblastoma.

90 Dr Gett examined the plaintiff in the consulting rooms at the hospital on 11 January 1991 and he described her presentation (at T 399):

"Q. … Do you have any recollection of how Reema appeared to you when you first met her in the circumstances you just described?
A. She looked unwell, her hydration - she was dehydrated, mildly dehydrated, she was irritable and listless.

91 Dr Gett has no notes of the history he was given. He said (at T 400):

"A. It is difficult to recall but I asked the parents what was the immediate problems that was confronting and happening to Reema and they said that they were concerned because she wasn't drinking as much, she was complaining of some headaches and she - she became quite thirsty and dry but - they are my recollections of the time and the parents then gave me a brief history of their - of Reema."

92 Dr Gett said he conducted a full neurological examination, but the plaintiff was unsteady on her feet and disinclined to walk, so he laid her on the examination couch and examined her cranial nerves, her power, tone and reflexes and the ocular fundi, using an ophthalmoscope. Dr Gett did this examination to see if there was any evidence of raised intracranial pressure.

93 Dr Gett was asked these questions and gave these answers as to the opinion he formed after his examination (T 404):

"Q. Now did you form any view about what Reema's presentation, coupled with the history you were given and the examination that you had undertaken, might indicate by way of a possible diagnosis?
A. Well, Reema had resolving [in] varicella or chickenpox rash and I was concerned about the possibility of inflammation of the lining of the brain, the meninges and possible inflammation on the underlying brain itself causing her symptoms and signs.

Q. And what is the underlying inflammation of the brain described as medically?
A. Meningitis.

Q. And was there any other condition, apart from meningitis, that you thought might be referable to her presentation?
A. Well, often with meningitis the lining of the brain is often swollen and inflamed and often there's an underlying inflammation of the brain tissue itself or encephalitis.

Q. And what, is encephalitis something that can be diagnosed by testing?
A. It can.

Q. How is that done?
A. By examining the spinal fluid.

Q. And how is that achieved?
A. By doing a lumbar puncture which is a needle into the base of the spine to get fluid that surrounds the brain.

Q. Now is a possible diagnosis or differential diagnosis of meningitis or encephalitis a significant matter in terms of the potential well-being of the patient?
A. Yes.

Q. And of what order is it necessary to undertake a lumbar puncture so as to analyse the CSF, how important is it?
A. Very important.

Q. In terms of the way in which other treatments might be dealt with, is it arranged in any way in terms of the first, last, middle?
A. Well, if you suspect infection and inflammation it is the first test.

Q. And if it's indeed found can it be treated?
A. Depending upon the infecting agent. If it's a virus there are anti-viral agents, not as prolific as there are now, but there are certain anti-viral agents and if it's bacterial, antibiotics.

Q. Did you form any view about whether there ought to be a lumbar puncture performed on Reema?
A. Yes.

94 Whilst Dr Gett kept no detailed notes of that examination, I accept the above description as given by him to be reliable. He wrote a note to the admitting doctor, Dr Kohn:

"Dear Michael,

95 The hospital records describe the examination findings of Dr Kohn, which I am satisfied were made after Dr Gett had referred the plaintiff for admission. Dr Kohn gave evidence as well. He had no real recollection of the examination nor of the attempted lumbar puncture but, nevertheless, I accept his notes in the hospital record as being reliable. He recorded in those notes (see Exhibit C, 576A and 577):

"Developed chicken pox - rash on 31.12.90 - following 1 week prodrome of vomiting for which she was admitted under Dr Gett.

At home she developed severe rash - involving chest/[abdomen]…

She [complains of] cont. headaches & intermittent [abdominal] pain.

48 hr [decreasing] appetite.

This morning began vomiting again x 4 - becoming lightly bile stained. Pain - controlled with Panadol.

[Seen by] Dr Gett - who has requested admission."

96 Dr Kohn went on to record his examination findings:

97 Dr Kohn went on to record results of his neurological examination. Pupils were examined and found to be normal. He examined various cranial nerves and he tested the neck for stiffness.

98 Accepting as I do the hospital notes in this regard as reliable, they record no sign of neurological abnormality at the time Dr Kohn examined the plaintiff.

99 The notes next record an examination by Dr Blissta on the same date. I will not record those notes in detail but they convey that on examination the plaintiff was afebrile, conscious and well orientated, and that there were no meningeal signs. Some examination of the central nervous system was conducted and, again, it showed no abnormality according to the doctor's note.

100 Whilst Dr Kohn had no recollection of attempting a lumbar puncture, the hospital note records that he carried out an unsuccessful attempt, and he discussed this result with Dr Gett.

101 The next recorded medical examination was on 12 January 1991, and this was an examination carried out by the second defendant. He said that he saw the plaintiff on his ward rounds and that he conducted a neurological examination specifically of the ocular fundi and he checked the plaintiff for neck stiffness, power and tone. Dr Gett's notes of this examination I record:

Diagnosis

102 Dr Gett decided to defer a lumbar puncture for twenty-four hours because the plaintiff was "clearly irritable and crying" (T 408).

103 The next notes made by a doctor are notes of Dr Jones at 11.00 am on 13 January 1991. I will not record the content of the nursing notes between Dr Gett's examination on 12 January and Dr Jones' examination on 13 January 1991, except for the important notes recorded at 11.45 am, but evidencing events that occurred before Dr Jones made his examination that morning. The entry at that time is in these terms (Exhibit C, 582):

"Father called out to nursing staff that Reema was staring and unresponsive. On observation by staff, [patient] responsive but irritable and drowsy and complaining of headache. Pupils noted to be unequal and [right] pupil not reactive. [Blood pressure] 131/85, other observations within normal limits. RMO notified. LP attended. [Seen by] Dr Gett, family reassured. [Patient] settled at time of report. Pupils now equal and reactive."

104 Mr Tabet gave evidence of what he had observed prompting him to call the nurse. He saw his daughter lying still and staring into space at about 11.00 am. I am satisfied it is the description of this event which prompted the attendance of the nurse and the nursing note to which I have referred.

105 Dr Jones was the registrar on duty, according to the hospital record, and that record reveals his note that he was asked to see the patient because of unequal pupils (Exhibit C, 581-582). His note relevantly reads:

[Discussed with] Dr Gett. He wishes LP and then review of patient by himself later on today."

106 A lumbar puncture was performed at approximately 11.30 am on 13 January 1991, shortly after the above examination by Dr Jones. His note concerning that procedure and its outcome was:

107 That fluid was sent for examination.

108 The nursing notes at 1.00 pm record:

"Nil further episodes of unequal pupils today. Observations stable, afebrile. Appears more settled. Given Panadol for headache at 1400…"

109 Then, at 9.40 pm it is recorded:

"Neuro observations remained stable this evening pupils equal and reacting…"

110 Mr Tabet said that there was an incident about 9.00 pm on 13 January when he observed the plaintiff staring again and he called the nurse, but that is not reflected in the hospital notes. However, Mr Tabet said that a doctor attended, and this may be a reference to Dr Lane, who did examine the plaintiff on 14 January 1991. Dr Lane appears to have examined the plaintiff at 1.00 am, and he noted persisting headache not relieved by regular doses of paracetamol and codeine. Dr Lane noted that the neurological signs were stable. On examination he found the plaintiff to be afebrile. As I read the notes, he detected no neurological abnormality but there was neck guarding and stiffness. Dr Lane noted concerns of the parents for a neurological review, and concluded his note: "Dr Gett aware and will arrange neuro consult."

111 At 5.15 am on 14 January 1991 the nurse wrote (Exhibit C, 583):

"Reema has had a very unsettled night. Complaining of a headache. She has had codeine phosphate sixth hourly and panadol regularly with very little effect. Viewed by Dr Lane at 1 am…and for review again about 5.45 am."

112 There are medical notes at pp 585 and 586 of Exhibit C. It is not clear what time Dr Brooks made his notes, but the notes include an entry "sent for CT scan". Dr Brooks' notes are followed by the registrar's note which does bear the date 14 January, and at that time the plaintiff was unresponsive, and it is recorded that she had been "since seizure at midday".

113 The nursing notes written at 2.45 pm on 14 January (Exhibit C, 587) probably put the notes at 585 and 586 into perspective. It is recorded that at 11.45 am the plaintiff's mother called for a member of staff to look at Reema. She was staring into space and was unresponsive on examination. Moreover, the pupils had deviated to the left side. Dr Ouvrier, a neurologist, was called and the plaintiff was taken for a scan at 12.40 pm. This was the CT scan which detected the medulloblastoma.

114 Following the scan, arrangements were made for the insertion of a ventricular drain. Dr Maixner's notes of the examination preceding that procedure appear at Exhibit C, 588. Dr Maixner first saw the plaintiff shortly after the CT scan in the EEG department, where it was clear to Dr Maixner that the plaintiff was having episodes of decerebrate posturing with extension of her limbs. The EEG was not then showing seizure activity and Dr Maixner did not consider that the plaintiff had an epileptic seizure. Following her examination, Dr Maixner proceeded to insert a right frontal external ventricular drain.

115 Dr Maixner reported (in Exhibit G, her report dated 4 July 2006) that the plaintiff had improved with CSF drainage by 15 January 1991, but the extent of any improvement and its significance is a matter to which it will be necessary to return later. On 16 January 1991 Mr Johnston carried out the operative procedure to remove the tumour. Dr Maixner's observations at operation, as recorded in Exhibit G, were that

"a large tumour was found arising from the wall of the fourth ventricle on the right side. The tumour had spread in a subpial fashion over the surface of both cerebellar hemispheres and was protruding over the foramen of Magendie. I documented that an incomplete removal of the tumour was achieved."

116 I will trace the course of events following the plaintiff's surgery later in this judgment, but I now address the allegations of negligence ultimately advanced as against the second defendant which follow on the events thus far recorded.

The negligence alleged

117 The negligence particularised in the amended statement of claim reads:

"(a) Wrongly attributed Reema's signs and symptoms of persistent vomiting and headache to post chicken pox encephalitis given that:

A. Reema has been suffering from persistent headache and vomiting from 18 December 1990 which was before her chicken pox lesions appeared;

B. Reema's brother's chicken pox rash first appeared on 16 December 1990;

C. The pre-rash prodromal period for chicken pox is short, usually 24 hours, whereas Reema has signs and symptoms 13 days before her chicken pox rash appeared.

(b) Failed to direct that a CT scan of the brain be performed prior to directing that a lumbar puncture be performed on 13 January 1991 when he knew or ought to have known that Reema's signs and symptoms of persistent headache and vomiting since 18 December 1990 were consistent with raised intracranial pressure the cause of which could have been a brain tumour;

(c) Directed that a lumbar puncture be performed in circumstances where he knew or ought to have known that there was a significant risk of 'coning' due to raised intracranial pressure, the cause of which could have been a brain tumour; and

(d) Failed to diagnose Reema's brain tumour in a timely fashion."

118 Further particulars were given by letter dated 30 June 2006, Exhibit N, but it is unnecessary to record those particulars here. In essence, the case as pursued against the second defendant was as follows:

(i) Dr Gett was negligent in not arranging for a CT scan;

(ii) Dr Gett was negligent in arranging for lumbar puncture when there was a risk of raised intracranial pressure;

119 Earlier I expressed some matters of principle to be considered when assessing the case against Dr Mansour (at [48] above). Those same principles are to be considered when assessing the case against Dr Gett, who was also consulted as a specialist paediatrician. With the benefit of hindsight, it is clear that Dr Gett's provisional diagnosis was incorrect, but Dr Gett's care of the plaintiff is not to be measured by resort to hindsight; rather the issue to be determined is whether in caring for Reema, Dr Gett exercised reasonable care, measured by reference to the standard of care required of a specialist paediatrician.

120 Mr McCulloch submitted that the differential diagnosis which Dr Gett made on 11 January 1991 was a reasonable one. I referred earlier to Dr Gett's observations, his recollection of the history that the parents gave him and to his examination. Mr McCulloch submitted that Dr Gett's examination ruled out the existence of evidence of raised intracranial pressure at that time. Dr Gett tested for neck rigidity and stiffness and it is submitted that it was reasonable, there being a resolving chicken pox rash, that Dr Gett would want to rule out inflammation of the lining of the brain by doing a lumbar puncture. Mr McCulloch submitted that Mrs Tabet acknowledged that the examination took place and she recalled that Dr Gett told her he felt stiffness on one side of the neck and this was indicative of encephalitis. Mrs Tabet agreed that Dr Gett said there was a need to rule out post chicken pox encephalitis (T 186). Hence the need for the note to Dr Kohn advising him that the plaintiff had "clinical signs of meningitis" (see Exhibit C, 566).

121 Dr Gett referred to meningitis and encephalitis as being interchangeable expressions.

122 There is support in the medical evidence for the reasonableness of Dr Gett's provisional diagnosis.

123 Dr Allen reported on 8 November 2001 (Exhibit 17) that varicella encephalitis is an uncommon complication of varicella occurring, usually, within ten days of the rash (see p 4 of his report of that date). Dr Allen described it as reasonable to express "the principal provisional diagnosis at this time as being varicella encephalitis". Dr Allen referred to a published article of Cherry and Shields (part of Exhibit 17) in which the most common initial manifestations of encephalitis were stated to "resemble an undifferentiated acute systemic illness with fever, headache or, in infants, screaming spells, and abdominal distress, nausea and vomiting."

124 Mr Johnston in his earliest report (Exhibit 11) expressed the opinion that Dr Gett's diagnosis of post chicken pox encephalitis made on 11 January 1991 was "entirely appropriate" in the absence of any signs of intracranial hypertension and no focal neurological abnormality. See also the evidence of Mr Johnston to the like effect (at T 679).

125 Professor Watson opined that "there were very good reasons to think that" the plaintiff had post chicken pox encephalitis (T 1863).

Q. Is it possible for you to try and apportion as between those possible causes?
A. Not accurate, no. I wouldn't like to do that, wouldn't like to attempt to do that.

"… this child had a number of events going against her over and above that of the radiotherapy and prior to the events related to coning. This patient had hydrocephalus at presentation which we now know to be a risk feature for cognitive deficit. She would have had endocrine deficit which we now know to be a risk feature, and ultimately, she had a surgical procedure which we now know also contributes to the outcome of cognitive deficit. Whilst I acknowledge that those sudden neurological event was a significant contributing feature, there are other features, the sum of which results in severe cognitive deficit. I'm not happy with the concept of just saying it's radiotherapy. I said sudden neurological events, therefore there are a number of contributors."

"…I mean the reality is that this child's ultimate cognitive outcome is a sum of all the events that took place. If you take one event out of that then there is a likelihood that it might have been a little different but it is very difficult to quantify what the contribution of each of the events is."

Dr Smee's answer last quoted followed immediately upon an answer that Dr Berry gave to the effect that the damage would have been less had the incident on 14 January been avoided, and he referred to the difficulty of "assigning a figure", saying only that it would have been "proportionately less".

399 Mr Wallace did not address the issue of the cause or causes of the plaintiff's present condition in his report, Exhibit U, but he gave evidence as to his experience in treating cases of medulloblastoma in children and of the perceived outcome in cases treated. Based on that experience, he considered the significance of the deterioration on 14 January. The experience of Mr Wallace has been that children recover relatively well from medulloblastoma tumours and are able to attend normal schools and to lead normal lives. To be left with an IQ as low as that which the plaintiff has differed in the experience of Mr Wallace from the cases of children he treated suffering from medulloblastoma in 1990 and 1991 (T 1352).

400 Mr Wallace said that the plaintiff's reduced IQ of less than 60 was "partly attributable possibly and in a very large degree to the coning that occurred after lumbar puncture" (T 1352-1353). Mr Wallace attributed the plaintiff's incapacity to care for herself to the coning episode (T 1355). He attributed the plaintiff's inability to work to the same cause (T 1355).

401 Mr Wallace considered that the plaintiff had suffered brain stem damage to a greater degree than could be attributed to radiotherapy and he attributed this increased harm to the coning episode (T 1540). Mr Wallace did not think it likely that the brain stem damage was due to the tumour.

402 Mr Klug addressed the issue of the causes of the plaintiff's present condition in his report dated 21 January 2004 (Exhibit W). He stated at p 9 of that report:

"a) I would be of the opinion that the child suffered a severe brain injury prior to the release of intracranial pressure on the 14th January 1991. Although it is not possible to exclude some contribution from her condition prior to the lumbar puncture, it would be my belief that the principal damage occurred between the time she had the lumbar puncture and when the ventricular drain was inserted.

b) I feel it is improbable that as a result of the surgery performed on the 16th January 1991 this person suffered any additional direct damage to her brain. I also feel it is unlikely that the subsequent hydrocephalus and the need for definitive treatment, namely a ventriculo-peritoneal shunt, contributed to further brain damage which was reflected in the ultimate functional outcome.

c) I feel it is most probable that the subsequently required radiotherapy has been responsible in its own right for significant morbidity. It is well recognised that radiotherapy of the type undertaken on this child at this period of life is very frequently associated with substantial morbidity."

403 Mr Klug gave evidence of having had extensive experience in the treatment of children with medulloblastoma and he said he followed up his patients (T 1677). He expressed a familiarity with operative procedures and the effect that chemotherapy and radiation treatment have on children who have suffered medulloblastoma.

404 In his opinion, the failure to detect the tumour before 14 January meant that the course of radiotherapy was delayed and longer than it otherwise would have been (T 1679). However, I observe as to this evidence that, having considered the evidence of Dr Smee and Dr Berry, I am satisfied that the nature and the course of the radiotherapy which the plaintiff received would have been no different had the plaintiff's condition been detected twenty-four hours earlier than it was.

405 Returning to the evidence of Mr Klug, in his experience the majority of children the plaintiff's age live essentially normal lives and many are capable of living independently and of working in an unskilled or in a semi-skilled occupation following effective treatment for medulloblastoma (T 1681). Mr Klug said that such patients have disabilities related to the treatment but many of them are able to live independently. He added, however, that some children do require twenty-four hour per day care (T 1681).

406 Mr Klug did not consider that radiotherapy was causative of significant motor impairment (T 1764). As to the spastic ataxia, balance and coordination impairment, he thought that the tumour and the hydrocephalus alone could have been addressed by a successful operation, so he attributed these disabilities to coning. Moreover, he considered the acute decline on 14 January contributed to the memory impairment, but the radiation treatment was the more dominant factor in relation to this disability.

407 Neither Mr Wallace nor Mr Klug was involved in the plaintiff's treatment and each of these witnesses became involved in this case after being qualified to express an opinion for the purposes of giving evidence.

408 It seems to me that much caution has to be exercised in applying evidence based upon the general experience of Mr Klug and of Mr Wallace to the particular case of this plaintiff, and it is important to pay due regard to the evidence of those doctors who were involved in the plaintiff's treatment.

409 Dr Williams expressed the opinion that "the major brain damage occurred when coning was precipitated by lumbar puncture" (p 12 of his report of 26 May 2006, Exhibit M). Chronologically then, Dr Williams attributed major significance to the decline on 14 January. However, Dr Williams acknowledged in that same report: "I do not have expertise in the outcome of medulloblastoma".

410 Mr Johnston had this to say as to the cause of the plaintiff's disabilities (see Mr Johnston's report, Exhibit 11, dated 24 November 2001):

"Her long term problems are altogether attributable to the severity of her initial problem, its secondary effects (particularly hydrocephalus and epilepsy) and the long term effects of the several treatments, surgery, chemotherapy and radiotherapy, all of which I believe were important contributors to her late and severe morbidity."

411 It is to be observed in that report that Mr Johnston did not include as contributing to the plaintiff's long term problems the decline on 14 January 1991, but he acknowledged in evidence, to which I have elsewhere referred, that there was brain damage that occurred at that time. That brain damage cannot be ignored.

412 I have earlier reviewed Dr Kellie's evidence bearing upon the effects of the brain surgery and the radiation treatment (at [338]-[348]). I also have regard to the evidence of Dr Berry and to the evidence of Dr Smee concerning the impact of the heavier dosage of radiation that was necessitated in the plaintiff's case (see [349]-[351] above).

413 Dr Jones addressed the issues I am presently considering in his report of 16 November 2001 (Exhibit 19). On p 21 of that report, Dr Jones wrote:

"Given the extent of the tumour and the widespread metastasis present, it is most likely that the cerebellar signs are due to the tumour itself and the operation required to remove it. It should be noted that she was mute after operation and this is quite frequently seen in operations of this nature which are of necessity, extensive because of the nature of the tumour.

As her optic fundi did not show any swelling at any time preoperatively, it is my opinion that the delay in diagnosis had minimal or no effect on her visual acuity.

However, she had extensive meningeal metastasis and these could have adversely affected her visual cortex and could have affected her optic nerves also.

Her vision has been further complicated by the occurrence of cataracts in her eyes. These are almost certainly due to the side effects of radiotherapy.

Her endocrinological problems have been also a side effect of the radiotherapy. This is quite a common problem in patients who have craniospinal radiation.

Similarly, her scoliosis is secondary to the irradiation of her spine and nothing to do with either the delay in diagnosis or the episode of coning.

Intellectual retardation is frequently seen in patients with medulloblastoma treated by craniospinal radiation and this has been a cause of great concern to all treating neurosurgeons. There have been attempts made because of this to reduce the amount of craniospinal radiation that these patients get and to supplement radiation with intensive chemotherapy. Unfortunately because of the great tumour bulk in the metastasis that Reema Tabet suffered from, it was necessary to give a maximal dose of radiotherapy as well as a maximal dose of chemotherapy."

414 In evidence Dr Jones attributed the plaintiff's intellectual deterioration in the main to the very high radiation dose (at T 1429):

415 In his report of 27 September 2002, Dr Jones considered the MRI films taken on 24 January 1995. One of the images showed that the left temporal lobe lesion did not involve the medial aspect, and Dr Jones wrote that it was not the part of the temporal lobe that would be damaged in uncal herniation.

416 Commenting on this in his evidence, Dr Jones said (at T 1430):

"What does that lead you to conclude about the cause then of the plaintiff's presentation with brain damage?
A. I would ascribe her memory problems as due to the radiotherapy and not due to damage to the temporal lobe.

417 As I understand his evidence, Dr Jones attributed the spastic ataxia largely to the radiation treatment, but the deterioration on 14 January was a probable contributor (T 1514). The impaired vision, the memory loss and the speech problems were due to the radiation treatment (T 1514-1515).

418 Earlier in cross examination Dr Jones agreed that whether damage was caused in the episode on 14 January depended on whether there was marked improvement after the drainage (T 1455). Dr Jones opined that any such damage was "mainly of a temporary nature" because of the degree of recovery (T 1466).

419 With reference to the evidence of Dr Jones, I am by no means convinced that the deterioration that occurred on 14 January was almost completely reversed by the relief of intracranial pressure, and, accordingly, I do not find that the damage occurring on 14 January was "mainly of a temporary nature". Subject to that qualification, I found Dr Jones' evidence to be generally persuasive. He was a careful witness who prepared extremely thorough reports (see Exhibit 19).

420 I referred earlier to the evidence of Professor Watson in considering whether the lumbar puncture was causative of what occurred on 14 January (see [245]). Dr Watson reported on 9 April 2002:

421 Professor Watson's view was ultimately stated as being that the plaintiff's disabilities were due to the severe and bulky tumour, the surgery, the radiotherapy and, possibly, the chemotherapy.

422 At T 1858 Professor Watson said:

"…that I now had arrived at the opinion that Miss Tabet's plight was the result of her extremely severe and bulky brain tumour, the neurosurgery done to try to debulk the tumour and the radiotherapy, possibly the chemotherapy. But no longer did I think the so-called coning or slow coning was an appreciable factor in contributing to her current plight."

423 Professor Watson considered that the surgery caused inevitable direct damage and vascular damage to the cerebellar cortex. It followed inevitably that the microvascular supply of the cerebellar cortex was significantly disrupted.

424 In rejecting the proposition put in cross examination that the surgery caused no additional damage, Professor Watson pointed out that parts of the plaintiff's cerebellum were removed and placed on slides for the pathologist (T 1902).

425 In his report, Exhibit R (at p 8), Dr Hopkins endeavoured to attribute the various problems the plaintiff had to various causes, and he also dealt with this in his evidence (at T 1022-1023). Dr Hopkins attributed the speech and motor disability to

426 The plaintiff's visual handicap he attributed to optic atrophy caused by raised intracranial pressure due to the tumour and hydrocephalus. Dr Hopkins wrote that the plaintiff's intellectual disabilities were attributable "in a significant part" to her radiotherapy. He thought that the coning episode (and I treat this as a reference to the decline on 14 January) may also have contributed. His evidence (at T 1109) was the radiotherapy was likely to be the predominant cause of the impaired intellectual ability, but, according to Dr Hopkins, the predominant cause of the plaintiff's brain stem dysfunction and disabilities, other than the intellectual disability, were the hydrocephalus and the tumour itself (T 1117).

427 To the extent that the views of Mr Johnston and of Dr Kellie differ from the views of Mr Wallace and Mr Klug on the importance to be attached to what happened on 14 January, I prefer the opinions of Mr Johnston and Dr Kellie, particularly having regard to their involvement in the treatment of the plaintiff. I add that I was much impressed by each of these witness whilst he was present in the witness box. I am mindful that neither Mr Wallace nor Mr Klug treated the plaintiff. Moreover, it seems to me that the evidence of Mr Johnston and of Dr Kellie is supported by the opinions expressed by Dr Jones and Professor Watson. Whilst I do not find, contrary to Dr Jones' opinion, that the damage that occurred on 14 January was mainly temporary, and whilst I do accept, contrary to Professor Watson's opinion, that the damage that occurred on that date was significant, I found the evidence otherwise given by Dr Jones and Professor Watson to be generally persuasive and consistent with the evidence of the two treating doctors. I am also influenced by the evidence of Dr Hopkins in the importance he attached, in terms of contribution to the plaintiff's condition, to the tumour itself and the hydrocephalus. Also to be weighed in the apportionment of responsibility to the event of 14 January 1991 is the evidence of Associate Professor Berry and the evidence of Associate Professor Smee and their conclusions about the role of the various contributors recorded at [398] above.

428 The above review of the medical evidence emphasises the difficulty in the task of apportionment. I have not attempted to record an exhaustive summary of the medical evidence. That would simply be impracticable having regard to its volume, but I have considered all the medical evidence closely. I do not accept that the event of 14 January played the dominant role which Mr Wallace and Mr Klug attribute to it in relation to the plaintiff's mental impairment and motor function disabilities, but I do accept that that event caused damage that contributed to those disabilities. Whilst Mr Johnston and Dr Kellie did not define the harm caused by the decline on 14 January, Dr Hopkins and Dr Jones in combination provided support for the view that that decline contributed to the plaintiff's intellectual impairment and her motor damage. The evidence of Professor Smee and Professor Berry also support that view.

429 Having considered all the medical evidence, I think it probable that the event of 14 January made some contribution to the plaintiff's ultimate disabilities, particularly her cognitive loss and her ataxia, her loss of balance and her coordination impairment. However, I find on the probabilities that the contribution made by the event of 14 January 1991 to the above specified disabilities and to her disabilities generally was significantly less than the combined contribution of the remaining contributors. It is impossible to be precise about the matter, as reflection on the medical evidence reveals, but I find on the probabilities that the contribution of the event of 14 January 1991 to the aggregate brain damage and resulting disabilities with which the plaintiff has presented to this Court is no greater than twenty-five percent.

430 In the result, had the plaintiff here proved an entitlement to be compensated in full measure for the harm sustained on 14 January 1991, then it would not have followed that the plaintiff established an entitlement to the total damages assessed at [220], bearing in mind the basis of that assessment. To have awarded such sum, or anything like it, would have been to award far too much. Twenty-five percent of $6,092,586 is $1,523,146.50, and it would have been inappropriate to have awarded more than that.

431 The calculation last made suggests a degree of precision belied by the approach to its assessment, which approach I have exposed. The assessment of the measure of the contribution of the decline on 14 January 1991 has not been based on any firm expression of medical opinion stating a percentage contribution, because there is no such evidence. (At a time prior to the conference of experts, Professor Watson opined in his report of 9 April 2002 that the "coning" event probably accounted for 20-30% of the plaintiff's disabilities, but he subsequently changed his mind about this.) Moreover, I acknowledge that in reaching the monetary amount last stated above, it has not been possible to proceed to that assessment in a precise way either. This follows from there being four contributors to the ultimate extent of the brain damage from which the plaintiff presently suffers, with all its resultant disabilities. However, I have made the assessment as some guide in my task of endeavouring to arrive at a fair allowance for the loss of the chance of avoiding the brain damage that did occur on 14 January 1991.

432 It is not possible to isolate any one of the various components of the total assessment considered in [207]-[220] above, and to regard it as referable only to what occurred on 14 January. The major heads of damage are the care costs, past and future, and I consider it probable that each of the contributors has increased the need, the damage occurring on 14 January, to no greater extent than in the proportion indicated. Similarly with general damages, each of the contributors has added to the various elements to be considered in connection with the non economic aspects.

433 In providing for future economic loss by the traditional approach, allowance would have to be made for the role of each of the contributors in determining to what extent the loss of capacity referable to the decline on 14 January was likely to be productive of economic loss, but the evidence here does not provide any more precise method of compensating for this head of damages than that reflected in the approach taken.

434 I have earlier expressed the conclusion that by reason of the negligence I have found, the plaintiff lost the chance of a better outcome, and of avoiding the brain damage that occurred on 14 January 1991, a chance I have measured at forty percent ([378] above). I use the figure stated at [430] above as a guide towards placing a monetary value on the lost chance, recognising the imperfections in the manner of its calculation when doing so. Ultimately then, the sum which I award is $610,000, which approximates to forty percent of the assessment arrived at in [430].

Costs

435 The plaintiff has failed against the first defendant but has succeeded against the second defendant. Mr Hall has submitted that it would be appropriate in the circumstances of this case for the Court to make an order in the nature of a Bullock order or a Sanderson order, resulting in the burden of the successful defendant's costs being shouldered by the second defendant.

436 The general rule that costs should follow the event is now expressed in Pt 42 r 42.1 of the Uniform Civil Procedure Rules. Departure from that general rule and a decision on whether or not a Bullock order or a Sanderson order ought to be made involves the exercise of the Court's discretion. It would not be proper to make an order, the effect of which was to make the second defendant responsible for payment of the first defendant's costs simply because the second defendant unsuccessfully resisted the plaintiff's claim against him. The plaintiff would have to show that the costs the subject of any order were reasonably incurred by the plaintiff as between the plaintiff and the second defendant. It would not be enough, in my opinion, for the plaintiff to show, if such was the case, that it was reasonable to sue the first defendant as well as the second defendant. It seems to me that the plaintiff would need to be able to point to some conduct of the second defendant such as would make it fair to impose some liability on him for the costs of the first defendant. This was the approach adopted by Blackburn CJ in Steppke v National Capital Development Commission (1978) 21 ACTR 23 at 30-31, cited with approval by Gibbs CJ in Gould v Vaggelas (1983-85) 157 CLR 215 at 230.

437 I am guided in considering the present application by what Gibbs CJ said in Gould in the following passage (at 229-230):

"The ground on which a Bullock order may be made is, in my opinion, more accurately stated in a passage in Sanderson v. Blyth Theatre Co. [1903] 2 K.B. 533, at p. 539, which was cited with approval in Bullock v. London General Omnibus Co. ([1907] 1 K.B. 264, at p. 272) and Hong v. A. & R. Brown ([1948] 1 K.B. 515, at p. 522), viz., that the costs which the plaintiff has been ordered to pay to the defendant who succeeded, and which the plaintiff recovers from the defendant who has failed 'are ordered to be paid by the unsuccessful defendant, on the ground that ... those costs have been reasonably and properly incurred by the plaintiff as between him and the [unsuccessful] defendant'. In Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation, ((1948) 77 C.L.R., at pp. 572-573), Williams J. stated the principle in a similar way and Starke and Dixon JJ., in giving their reasons for making a Bullock order, both relied on the circumstance that the attitude adopted by the successful defendant had induced the plaintiff to join the other defendant ((1948) 77 C.L.R., at pp. 559-560, 566). In my respectful opinion the true position was clearly stated by Blackburn C.J. in Steppke v. National Capital Development Commission ((1978) 39 L.G.R.A. 94, at p. 100; 21 A.C.T.R. 23, at pp. 30-31), when he said that 'there is a condition for the making of a Bullock order, in addition to the question whether the suing of the successful defendant was reasonable, namely that the conduct of the unsuccessful defendant has been such as to make it fair to impose some liability on it for the costs of the successful defendant'".

438 In the same case, Wilson J said (at 246-247):

"A Bullock order is a term — derived from the decision of the Court of Appeal in Bullock v. London General Omnibus Co. ([1907] 1 K.B. 264) — used to describe an order requiring an unsuccessful defendant to pay the costs which have been awarded in favour of a successful defendant. Such an order may be made where the costs in question have been reasonably and properly incurred by the plaintiff as between him and the unsuccessful defendant: Bullock ([1907] 1 K.B., at p. 269); Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation ((1948) 77 C.L.R. 544, at p. 572); Altamura v. Victorian Railways Commissioners ([1974] V.R. 33). The making of such an order is a matter for the discretion of the trial judge."

439 In Gould Brennan J expressed the position thus (at 260):

"Although the making of a Bullock order is in the discretion of a trial judge, the mere joinder of two causes of action against separate defendants in the one action is insufficient to support the making of an order against an unsuccessful defendant when the other defendant is exonerated. A judicial discretion can be exercised to make a Bullock order against an unsuccessful defendant in an action brought against two or more defendants for substantially the same damages only if the conduct of the unsuccessful defendant in relation to the plaintiffs' claim against him showed that the joinder of the successful defendant was reasonable and proper to ensure recovery of the damages sought: cf. Johnsons Tyne Foundry Pty. Ltd. v. Maffra Corporation ((1948) 77 C.L.R. 544, at p. 566)."

440 The second defendant's conduct of this cause was focussed on denying that he was negligent and on denying there was any act or omission by him such as was causative of harm to the plaintiff. The second defendant did nothing to point to fault by the first defendant or to encourage the plaintiff to join the first defendant in the proceedings. I do not conclude that costs incurred in the proceedings between the plaintiff and the first defendant are to be regarded as having been reasonably and properly incurred by the plaintiff as between the plaintiff and the second defendant. Hence, I do not consider it would be proper to make a Bullock order or a Sanderson order concerning the costs of the successful defendant.

441 Costs should follow the event in respect of the proceedings between the plaintiff and the first defendant and in respect of the proceedings between the plaintiff and the second defendant, and I will make orders to this effect.

Formal orders

442 1. On the plaintiff's claim against the first defendant, verdict and judgment for the first defendant.

2. On the plaintiff's claim against the second defendant, verdict and judgment for the plaintiff in the sum of $610,000.

3. I order that the plaintiff pay the first defendant's costs of the proceedings against the first defendant.

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Citations

Tabet v Mansour [2007] NSWSC 36

Most Recent Citation

Hart v Di Palma [2007] QDC 377

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CITATION:	Tabet v Mansour & Anor [2007] NSWSC 36
HEARING DATE(S):	19-31 July, 1-3 August, 7-17 August, 24-31 August, 4-6 September, 18-21 September, 27 September, 9 November 2006
JUDGMENT DATE :	9 February 2007
JURISDICTION:	Common Law Division Professional Negligence List
JUDGMENT OF:	Studdert J
DECISION:	1. On the plaintiff's claim against the first defendant, verdict and judgment for the first defendant. 2. On the plaintiff's claim against the second defendant, verdict and judgment for the plaintiff in the sum of $610,000. 3. I order that the plaintiff pay the first defendant's costs of the proceedings against the first defendant. 4. I order that the second defendant pay the plaintiff's costs of the plaintiff's proceedings against him.
CATCHWORDS:	MEDICAL NEGLIGENCE CLAIM - six year old patient referred to first defendant paediatrician on 28 December 1990 with a history of headaches - hospital admission 29-31 December 1990 - varicella rash by time of discharge - whether first defendant negligent in treatment in failing to detect medulloblastoma - no CT scan to investigate cause of headaches. MEDICAL NEGLIGENCE CLAIM against second defendant - consulted as paediatrician on 11 January 1991 - resolving varicella rash - continuing headaches - provisional diagnosis of meningitis - hospital admission 11 January 1991 - lumbar puncture 13 January 1991 - deterioration 14 January 1991 - CT scan then reveals medulloblastoma - whether second defendant negligent in treatment - whether failure to arrange CT on 13 January 1991 causative of harm. MEDICAL NEGLIGENCE - lost chance of better outcome - entitlement to damages - assessment of value of lost chance. The plaintiff was a six year old child who was referred to the first defendant in his capacity as a specialist paediatrician on 28 December 1990 with complaints of headaches. The plaintiff was admitted to hospital on 29 December and remained there until 31 December 1990, by which time a varicella rash had appeared. The plaintiff was examined by the first defendant before her discharge from hospital on 31 December 1990, the last occasion on which the first defendant saw the plaintiff. The plaintiff consulted the second defendant, who was a specialist paediatrician on 11 January 1991, with resolving varicella rash and with complaint of continuing headaches. The plaintiff was admitted to hospital again on that date for investigation, the second defendant making a provisional diagnosis of meningitis. A lumbar puncture was performed on 13 January 1991 and on 14 January 1991 a CT was performed after the plaintiff's condition deteriorated. This procedure disclosed that the plaintiff had a medulloblastoma. The plaintiff was subsequently operated on for a subtotal removal of the medulloblastoma. The plaintiff later had extensive chemotherapy and radiotherapy. The treatment was successful but the plaintiff has been left severely disabled. The plaintiff claimed damages against each defendant, alleging negligence by each defendant in treatment and the failure to detect the medulloblastoma before it was detected. HELD - As to liability: (1) The claim against the first defendant failed - (2) The claim against the second defendant succeeded in that there was found to be a breach of duty of care in not arranging for an urgent CT on 13 January 1991 following an episode occurring on that day - (3) The failure to arrange for that procedure was not proved on the probabilities to be causative of harm, having regard to the plaintiff's pre-existing condition at that time, and to the treatment likely to have been provided if there had been a CT on 13 January 1991 - (4) The plaintiff, however, proved an entitlement to damages for loss of a chance of a better outcome and the avoidance of the damage done on 14 January. Damages: (5) There were four contributors to the totality of the brain damage from which the plaintiff suffers: (i) the medulloblastoma with its seeding and hydrocephalus - (ii) the damage that occurred on 14 January 1991 - (iii) the surgery on 16 January 1991 - (iv) the subsequent radiotherapy treatment - (6) Except for (i), each of the remaining contributors added to the brain damage preceding its contribution - (7) The contribution of the damage that occurred on 14 January to the total damage and resulting disabilities was not greater than twenty-five percent - (8) The loss of the chance of a better outcome and avoidance of the harm suffered on 14 January 1991 was quantified as a forty percent chance - (9) Damages were assessed on the loss of a chance basis at $610,000.
LEGISLATION CITED:	Civil Liability Act 2002 Supreme Court Rules Uniform Civil Procedure Rules
CASES CITED:	Assessment of Damages for Personal Injury and Death, Luntz, 4th ed. Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 Chang v Australia Meat Holdings Pty Limited [2001] QCA 51 Chappel v Hart (1998-1999) 195 CLR 232 Daniels v Anderson (1995) 37 NSWLR 438 Elbourne v Gibbs [2006] NSWCA 127 F v R (1983) 33 SASR 189 Gavalas v Singh (2001) 3 VR 404 Gould v Vaggelas (1983-85) 157 CLR 215 Gregg v Scott (2005) 2 AC 176 Halverson & Ors v Dobler [2006] NSWSC 1307 Hatton v Sutherland (2002) 2 AER 1 Hines v Commonwealth of Australia 1995 ATR 81-338 Hole v Hocking (1962) SASR 128 Hotson v East Berkshire Area Health Authority (1987) AC 750 Malec v J.C. Hutton Pty Limited (1990) 169 CLR 638 March v Stramare Pty Limited (1990-1991) 171 CLR 506 Naxakis v Western General Hospital (1999) 197 CLR 269 Patrick Operations Pty Limited v Comcare [2006] NSWCA 142 Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 Purkess v Crittenden (1965) 114 CLR 164 Rogers v Whitaker (1992) 175 CLR 479 Rosenberg v Percival (2001) 205 CLR 434 Rosniak v GIO (1997) 41 NSWLR 608 Rufo v Hosking (2004) 61 NSWLR 678 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Seltsam Pty Limited v McGuinness (2000) 49 NSWLR 262 Simpson v Diamond [2001] NSWSC 925 State of New South Wales v Burton [2006] NSWCA 12 Steppke v National Capital Development Commission (1978) 21 ACTR 23 Tabet by her tutor Sheiban v Mansour & Anor [2006] NSWSC 754 Warringah Shire Council v Jamieson (unreported, NSWCA, 19 December 1980) Watts v Rake (1960) 108 CLR 158 Wilsher v Essex Area Health Authority (1988) 1 AC 1074
PARTIES:	Reema Tabet by her tutor Ghassan Sheiban (Plaintiff) Albert Mansour (1st Defendant) Maurice Gett (2nd Defendant)
FILE NUMBER(S):	SC 20239/01
COUNSEL:	G.B.H. Hall QC/Dr R. Pincus (Plaintiff) M.T. McCulloch SC/T. Berberian (Defendants)
SOLICITORS:	Millar Goddard (Plaintiff) Blake Dawson Waldron (Defendants)