Talbot & Anor v Lusby

[1995] QSC 143

IN THE SUPREME COURT

OF QUEENSLAND  No.  1899 of 1992

[Talbot & Anor.  v  Lusby]

BETWEEN:
  KERRY  ELLEN TALBOT
  First Plaintiff
AND:
  MARK TALBOT
  Second Plaintiff
AND:
  HENRY LINDSAY JOHN LUSBY
  Defendant

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 14th day of July, 1995

Kerry Talbot is dying of cancer.  She is only 37.  Probably she has but a few months to live, perhaps only a few weeks.  The cancer started in her right breast but it spread to her lymph nodes, her spine and her liver.  She is undergoing treatment but it is only palliative - to relieve the symptoms.  She found out about it in December 1991.  At that stage the cancer was already in her lymph nodes and her back.  It was already incurable.

She comes to Court alleging that her doctor was negligent.  He is the defendant in these proceedings.  She says that had he exercised due care from the time in 1989 when she first complained to him of a lump in the breast, it would probably have been diagnosed as cancer and it would have been treated.  Had it been treated promptly, she alleges, her prognosis would have been good.  She claims she has lost that relatively good chance of survival, has suffered pain and stress and has lost money as a result of his negligence.

Her husband Mark is also a plaintiff in this action.  He is claiming damages for loss of consortium: including loss of partnership income; certain economic loss; and (to the extent to which such damages are not allowed as part of Mrs. Talbot's claim) damages for loss of services.

Dr. Lusby is now aged 71.  He graduated in medicine in 1947 and from 1960 onwards he was qualified and registered as a general surgeon.  From that year until about 1972 he practised in general surgery on Wickham Terrace and was Honorary Visiting General Surgeon at the Mater Hospital.  He subsequently commenced general practice at Ascot, and was so engaged in 1989.  During his surgical experience, working in big hospitals, he saw some 10-15 cases of breast cancer each year.  After giving up surgery he saw one to three such cases per year.  He retired in December 1992. 

History

Mrs. Talbot had been a patient of Dr. Lusby since at least 1974, when she was 16.  He was then her family doctor.  After she married in 1978 she continued as his patient, although her husband and children went elsewhere.  She attended him for various reasons including pregnancy testing[1], and from time to time he examined her breasts.  In 1974 she suffered a mamillary fistula, a discharging spot, on her left breast, and in 1981 a degree of mammary duct ectasia in the same breast.  From time to time she had lumps in her breasts: "Just the usual lumps that ladies get around period time."[2]

[1]      She has three children: Kate, born 1 November 1985; Ryan, born 3 March 1988; and Jarod, born 9 August 1991.

[2]      To use her words.

Mrs. Talbot consulted Dr. Lusby on 16th February 1989 having noticed what she described as a "hard lump...about half an inch" in diameter in the outer exterior quadrant of her right breast - about an inch from the nipple at 10 o'clock as she described it.  It was harder than, and "definitely different" from, her previous lumps.  She had not noticed this lump until a few days previously.  She had small breasts and it is reasonable to conclude that the lump had not been detectable for a prolonged period prior to her noticing it.  Dr. Lusby examined her.  In evidence he described the area in question:

"In the right breast in the lateral half of the outer half of the right breast, there was a large area which felt firm, lumpy, ropey, if you like, tender, and it occupied about one-third of the outer half of the breast, both extending into lower and upper quadrants of that breast."

His guess was that it extended at least three inches vertically and one and a half to two inches laterally.  He drew a diagram in his notes, showing a hatched area on the breast.[3]  It was, he said, two dimensional in feel, unlike a cancerous lump which is three dimensional.  It was typical of mastitis, a condition which he also described as cystic hyperplasia.  Mastitis means inflammation of the breast.  It is an older medical usage and it refers to fibrocystic disease.  Fibrocystic disease is itself an umbrella term for a number of conditions.  None of them is malignant.  Fibrocystic disease generally occurs bilaterally, i.e. in both breasts.

[3]      Described in more detail below.

Dr. Lusby thought that further investigation was warranted.  He thought Mrs. Talbot should have an ultrasonic scan.  This he thought preferable to mammography (x-rays of the breast from two angles) to avoid radiation in a young woman.  However I find he changed his mind.  He suggested to Mrs. Talbot that she have a mammogram and gave her a referral to some radiologists, Southern X-Ray Clinic, where Dr. Isobel Furnival was practising.

Mrs. Talbot went and had the mammogram promptly.  She was not seen by a doctor nor did she tell the staff whom she did see anything of her condition.  There was no occasion for her to do so.  Her x-rays were assessed by Dr. Furnival, who reported to Dr. Lusby as follows:

"TECHNIQUE:  Each breast was examined in cranio-caudal and medio-lateral oblique films

FINDINGS:There is an extremely dense parenchymal pattern throughout both breasts.

Allowing for this there is no definite mass lesion or focal stromal contraction.  In particular the clinically palpable lump adjacent to the right areolar laterally cannot be identified.  Depending on further clinical management ultrasound examination may be helpful in this case.

There is no calcification of pathological significance."

Dr. Furnival gave evidence.  She said it was never a practice for the radiographers to undertake a physical examination of a patient.  Her only sources of information in compiling her report (apart from the actual x-rays) were conversation with the radiographer and the referral form completed by the referring doctor.  She had no recollection of the particular case. 

On 22nd February 1989 Mrs. Talbot returned to Dr. Lusby with the x-rays and the report.  He read the report and he viewed the x-rays.  He told her she had a form of mastitis.  He says that he considered ultrasound examination:

"I considered that, yes, but the management really is simply observation, hoping that the area will shrink down to make the patient more comfortable.  You look to see if any cysts develop.  Cysts are not an essential part of the mastitis, but if a cyst does develop and you can prove a cyst is there, it confirms your clinical diagnosis of mastitis."

He did not send her for an ultrasound examination but arranged to see her again in two months' time.

Mrs. Talbot returned to Dr. Lusby on 24th April 1989 to have the breast checked again.  At that stage she says the lump had not changed size or perhaps was a tiny bit bigger than what it had been.  She says that Dr. Lusby put a needle into the lumpy area.  She did not see exactly what he did, but he told her that the area could be likened to a cluster of grapes and that he had drained one of the cluster.  She says she felt the lump after he had carried out the operation and it felt the same to her. 

In fact, Dr. Lusby had detected and successfully drained two millilitres of fluid from a cyst in her breast.  The presence of a cyst, he says, tended to confirm his diagnosis of benign cystic hyperplasia.  That was because the fluid was clear and the area aspirated was empty.  A small lumpy area remained around it but the cyst had gone.  The lumpy area was, Dr. Lusby thought, about a quarter the size of the original mass seen by him.  He says he told her that she had an area of disease, not a single solitary lump.  He says that while he was not prepared to say that his diagnosis was conclusive, he had no doubt about what was left there.  He arranged to see her again in two months' time, and made a note "? resect".  He drew another, different diagram.

On 29th June 1989 Mrs. Talbot returned to Dr. Lusby.  She can recall little of that consultation.  Dr. Lusby says that the area which he had originally observed in February had contracted and was very much smaller now.  He was unable to be specific about its size.  He reduced the Indocid which he had prescribed for her in February from two a day to one a day.  He arranged to see her in three months' time.

In fact she returned on 28th August 1989.  Mrs. Talbot deposed that on that occasion Dr. Lusby again tried to remove fluid from the lump but nothing came out.  The lump was harder than it had been and seemed slowly to be getting bigger but she could not remember whether she told Dr. Lusby these things.  Dr. Lusby says that on that occasion he tried to needle what he thought might have been a small cyst, but either he was wrong about the existence of the cyst or it tore and dissipated into the breast tissue before withdrawal of fluid could be effected.  He now had no doubt, he says, that the diagnosis was mastitis.  The only thing that he could feel was something very, very small, possibly a small cyst.  It was not superficial and she was probably unaware of it.  He told her to come back in six months' time.

Mrs. Talbot again saw Dr. Lusby in October and December 1989 and March 1990, but for unrelated conditions.  On at least one occasion, she says, she mentioned her breast to him because she was always concerned about the lump still being there; it never went away.  She says that at one stage he told her he could remove the lump but she would lose most of her breast and he could not see that it was necessary.  His evidence was that there may have been discussion of breasts but the consultations were for gynaecological problems.  In October he prescribed Triphasil, which is a contraceptive.  At that stage, he says, there was no mastitis -he would not have prescribed an oral contraceptive if there had been. 

On 7th April 1990 Mrs. Talbot again consulted Dr. Lusby with several conditions.  She was suffering from vaginitis and rawness of the cervix and she had a pap smear taken.  Her breasts were examined and Dr. Lusby again described the condition of her right breast to her as mastitis.  She does not recall any advice about it at that time.  Dr. Lusby says that she was suffering vaginal blood spotting and discharge, with a diffuse erosion of the cervix which looked abnormal.  He says that she also had an area of mastitis, roughly the middle third of the outer half of the breast, which was slightly larger than the previous event.  It had the same firm ropey sensation that he had felt previously.  He prescribed Monistat to give her relief from the vaginitis and prescribed nothing for the mastitis.  He says that she should have returned for a further consultation, but he does not claim that he told her this.

Mrs. Talbot did not return to Dr. Lusby until 3rd January 1991.  The purpose of that consultation was to have a pregnancy test, which proved positive.  She says that Dr. Lusby examined her breasts and she asked about the effect of the lump on breastfeeding.  She says she was led to believe that the sucking motion of the baby would relieve the lump.  She denied that it was only after this visit that the lump started to get bigger.  Dr. Lusby says that apart from the normal enlargement of breasts expected in early pregnancy, her breasts felt quite normal.  There was, he says, no mastitis, "no lumps or bumps or anything to feel".  He had no concern at all about her breast.

Dr. Lusby referred Mrs. Talbot to Dr. John Rolley, an obstetrician, to manage her pregnancy.  Mrs. Talbot said that Dr. Rolley examined her breasts in the initial stages.  She says she told him that she had a lump in her right breast but had been told that it was okay, that it was some form of mastitis.  She says he never followed it through any more than that and just felt her breasts.  Dr. Rolley wrote a report shortly before the trial to the defence solicitors.  He seems to have done so without the knowledge or consent of his patient, Mrs. Talbot.  The existence of that report came to light during the trial and counsel for Mrs. Talbot tendered it.  He reported that he had no note of having examined her breasts, but that he would have done so on nine out of ten occasions.  However, if he had been told of Dr. Lusby's recent examination of her breast lump, he would not necessarily have done so - he would have relied on Dr. Lusby's examination to have established that the lump was in fact a fibrocystic lump.  He said that Mrs. Talbot did not express any concern about the lump to him. 

Mrs. Talbot's third child was born in August 1991.  In December that year she began to feel back pain and decided to consult her sister's doctor, Dr. Hess.  In passing she mentioned the lump in her breast and Dr. Hess examined it.  Dr. Hess recommended an immediate mammogram and ultrasound.  These were carried out and the plaintiff was then referred to Dr. Pyke. 

Dr. Pyke prepared a report in August 1992.  He reported that when he saw Mrs. Talbot on 20th December 1991, a mammogram and breast examination had revealed a large mass in her right breast.  On examination he found that she had a hard mass 5 x 4 cms in the upper outer quadrant of her right breast.  It was fixed to the muscle and was causing nipple retraction.  He recommended surgery and on the following day a right modified radical mastectomy was carried out.  Examination of the amputated breast by Dr. Chong, a pathologist, showed the tumour to be 44 x 30 x 22 mms in size.  There was also glandular hyperplasia with resolving lactational changes.  Tumour metastases were noted in seven out of nine lymph nodes and there was tumour present in perinodal fat.  A post-operative bone scan showed multiple bony metastases in her thoracic, cervical and pelvic bones.  She had stage 4 breast cancer and only a 10-20% chance of being alive in five years.

Since then, her condition has worsened.  In August 1993 she had an operation to remove a cancer from near the scar on her chest wall.  In December 1994, it was found that the cancer had spread to her liver.  In the same month, she suffered a fractured vertebra as a result of the deterioration of her back caused by the bony metastases.  She is now near death.

In summary, Mrs. Talbot's case is that she had a discrete lump in her breast from the time of her consultations with Dr. Lusby in February 1989 and that for nearly three years it was allowed to grow unchecked.  On the other hand, Dr. Lusby's case is that she never presented with a discrete palpable lump; that she had an area of mastitis which decreased over the period from February 1989 until it disappeared by October 1989; that the area of mastitis recurred in April 1990 but was not present in January 1991; and that the cancer was of a fast growing type which did not commence (or at least was not detectable) until after January 1991. 

The beginning of the cancer

I accept the submission of Mr. Clifford QC (for Dr. Lusby) that it is extremely difficult to reconcile these two histories.  As he said, they are diametrically opposed.  I have taken into account that a lay person may describe any thickening in the breast as a lump, and that the plaintiff was not keeping notes of her consultations.  Even making appropriate allowance for these factors however, it seems to me that the versions given by the plaintiff and the defendant are irreconcilable.  I think Mr. Clifford's approach to this problem is correct.

I have come to the conclusion that the plaintiff had a cancerous lump in her breast, of a size which was palpable, on and after 16th February 1989.  First, I do not think the plaintiff is lying about the existence of the lump, and even making allowance for her lack of medical expertise, I do not think she would be confusing a two dimensional area of the size described by Dr. Lusby with a marble-sized lump, particularly if (as he says he did) he explained the position to her.  On the other hand I did not find Dr. Lusby's evidence wholly satisfactory[4].  That is not to say that on some occasions Mrs. Talbot did not have mastitis as well - I find she did.  But she said, and I accept, that she always had a lump. 

[4]      See below.

Second, her husband corroborated her evidence in this regard.  He gave evidence that he could feel a round lump under her skin around the top part of the breast.  While he could not identify the occasions on which he was asked by her to feel the lump, there were a number of them, and as a result he was able to notice that the lump was gradually getting larger and harder.  In early 1991 it was very hard, he said.

Third, I formed the impression that Dr. Lusby was embroidering his evidence.  I have already referred to Dr. Lusby's description of Mrs. Talbot's condition when she presented on 16th February 1989.  Although it was put to Mrs. Talbot that what she felt was a lumpy area without defined edges in the outer quadrant of her breast, it was not suggested that the half inch lump of which she spoke was really so large as to occupy one-third of the outer half of the breast, nor was any approximation of the dimensions 3" x 1½-2" suggested.  She explicitly testified that the lump she felt was in the 10 o'clock quadrant, about an inch from the nipple and it was not suggested that in fact it was spread over both the upper and lower quadrants of the breast.  However that was the evidence given by Dr. Lusby.  Apart from the figure of about one-third of the outer half of the right breast (asserted in an affidavit which Dr. Lusby swore on 31st May 1993) his evidence was new.

Fourth, I am also troubled by the fact that Dr. Lusby's description of the mastitis was not put to Mr. Talbot.  If it is to be suggested that his evidence is incorrect, the correct version should have been put to him and he should have been given an opportunity to comment on it.  This simply did not occur. 

Fifth, I am fortified in this finding by exhibit 1, Dr. Furnival's report.  That report refers to an inability to identify "the clinically palpable lump adjacent to the right areola laterally".  Mrs. Talbot was not examined at the time the x-ray was taken and I accept her evidence that she told no one at the radiology practice about the lump.  I certainly do not think the words quoted would be words used by her, having observed her and listened to her for some time.  I infer that the referral which Dr. Lusby wrote contained a reference to a palpable lump in the location stated.  It follows that though he made no note of it at the time, Dr. Lusby must have been aware of the presence of something properly so described. 

Sixth, Dr. Lusby's diagram in his notes of 24th April 1989 is visually more consistent with the existence of a lump than of a lumpy area when one has regard to his depiction of such an area in his diagram of 16th February 1989.  Unlike the earlier diagram, this diagram has no hatched area.  There is a smaller area, drawn in the same way as and slightly larger than the nipple (i.e. a circular solid mark) and labelled "lumpy still".  The diagram does not appear to me to be describing an area of mastitis.

In summary, I find that Mrs. Talbot had a firm lump of about a half an inch diameter in her right breast in the location which she described on 16th February 1989, and that the lump gradually got bigger and harder over the next 2¾ years. 

The "aggressive cancer" theory

On behalf of Dr. Lusby it was contended that the cancer found in December 1991 was of the aggressive type, and that it had developed (or at least become palpable) only after the consultation in January 1991.  That would plainly be inconsistent with the existence of a cancerous lump in and after February 1989.  I have taken the evidence in support of this contention into account in reaching the above conclusion. 

"Aggressive" in this context appeared to be a non-technical term and was employed by the various experts with differing shades of meaning.  It seemed to be generally agreed that it referred to one of the biological qualities of a cancer.  As such, aggressiveness was predetermined, or at least was determined by the time a cancer became palpable.  It manifested itself in the tendency of a cancer to spread quickly and extensively throughout the body.  All of the doctors seemed to accept that it was quite possible for an aggressive cancer to develop in eleven months.

There is apparently no way of determining conclusively whether a cancer is an aggressive one.  There are, however, indicators which were relevant in this case.  First, the tumour mass in Mrs. Talbot's excised breast showed (according to the histopathology report) moderately differentiated carcinoma.  Differentiation refers to the degree of abnormality of cancer cells.  Dr. Pyke thought that this indicated "intermediate aggressiveness, not particularly aggressive, likewise not particularly slow growing, sort of intermediate".  Dr. Eliadis thought that well differentiated or moderately well differentiated tumours had a less aggressive biological behaviour than poorly differentiated tumours - that this was useful as a guide but was certainly not foolproof.  Dr. Beadle accepted that the extremely aggressive carcinomas are usually the poorly differentiated carcinomas, but did not accept that moderately differentiated ones were any different - or at least, had been shown to be any different.  He suggested that the distinction was between the well differentiated carcinomas and the others.  Unfortunately, this view was not put to either Dr. Pyke or Dr. Eliadis.  Dr. Wetzig, who was inclined to favour a conclusion of aggressiveness on other grounds, did not rely on this factor, although he was aware of the report.  Dr. Chong used the term aggressive to refer only to the extent of spread of the cancer, not to its rate of spread.

Another factor relied upon by Dr. Eliadis for his view that Mrs. Talbot's cancer was a non-aggressive one was the fact that it turned out to be an infiltrating duct carcinoma, the most common form of breast cancer.  Dr. Eliadis said that for that type of carcinoma, only between 5 and 10% would grow rapidly.  Dr. Eliadis thought this tumour had behaved non-aggressively and predicably.  This precise point was not raised with the other doctors.

A third indicator of the nature of the cancer lies in the fact that Mrs. Talbot has survived for 3½ years since the cancer was detected.  Mrs. Talbot had distant metastases[5] well established by December 1991. The median period of survival for people with distant metastases is, according to Dr. Pyke, two years or a bit less.  He thought this indicated a not particularly aggressive tumour.  He also thought an aggressive tumour might have become evident in the liver sooner than it did.  However Dr. Pyke seemed to hint that his answer might need to be qualified by reason of the fact that Mrs. Talbot had had treatment for cancer in the intervening period.  Dr. Wetzig agreed in cross-examination that a cancer which could grow from being undetectable to 4.4 cms and which had metastasised in 11 months would be extremely aggressive; and that such a cancer would more likely than not cause the death of the sufferer in a matter of months rather than years.  Dr. Beadle on the other hand denied that Mrs. Talbot would by now probably be dead if she had had a very aggressive tumour that metastasised very early.  This was an aggressive cancer, he thought, a view itself based on the fact that there were distant metastases present.  Dr. Beadle did not use the survival time as a factor in determining aggressiveness; he used his conclusion of aggressiveness to classify the survival time as prolonged by chemotherapy. 

[5]      Metastasis was the word used by all of the medical witnesses to describe the process of the spread of the cancer cells to other parts of the body.  "Metastasis [Greek, removal].  The transfer of disease from a primary focus to a distant one by the conveyance of causal agents or cells through the blood vessels or lymph channels."  Blakiston's New Gould Medical Dictionary.  The plural metastases was used not to describe multiple processes but rather the distant outbreaks of disease themselves. 

In his report Dr. Beadle expressed the view that it is uncommon for patients to present with a tumour the size of Mrs. Talbot's and simultaneous distant metastases.  That, he said, supports the contention that such a tumour has metastasised very early in its history - almost certainly long before it was even palpable.  In cross-examination he said that in fact the size was irrelevant - it was the fact that distant metastases were present which was significant.  However he then conceded that it was possible for the cancer to have metastasised during a period of three years, while the cancer was growing from 1cm in diameter to its ultimate size.  He discounted that possibility on the basis of growth doubling times.  These he implied were shorter than average, indicating an aggressive cancer.  However when the doubling time for Mrs. Talbot's cancer was put to him, Dr. Beadle responded, "For some of the studies it's below[6] the median doubling time.  It's a slow doubling time"[7].

[6]      Sic!  I took him to mean "above" - he had referred to studies showing median times of 102, 212 and 120 days.

[7]      Mr. Williams put figures to Dr. Beadle based on seven doublings in three years and a resulting doubling time of 156 days.  On my calculations it would have been slightly more accurate to have put 6.5 doublings in 1,038 days and an average doubling time of 158 days, but the difference is insignificant.

In my judgment not only did Dr. Beadle fail to give any weight to Mrs. Talbot's survival period, he also failed to demonstrate a sound foundation for his conclusion that the cancer was aggressive.  I note that Dr. Eliadis expressly disagreed that one could draw the conclusion of aggressiveness merely from the fact that there are distant metastases actually detectable at the time of presentation. 

One other possible indicator should be mentioned.  In August 1993 Mrs. Talbot had a further operation to remove a small nodular cancer from near the scar on her chest wall.  Dr. Pyke put that down to incomplete local treatment (i.e. excision) of the original condition  - he thought it was the original primary showing up again.  That view was not challenged in cross-examination.  Dr. Chong thought, consistently with this possibility, that the margin of 10mm on the specimen delivered to him for pathology was "very close".  Dr. Eliadis thought that no conclusion about the aggressive nature of the cancer or otherwise could be drawn from the further involvement on the chest wall in August 1993.  Dr. Wetzig pointed out that there were studies which suggested that recurrence within the scar was due to tumour which had spread beforehand rather than incomplete treatment, but conceded that the latter was still possible.  However Dr. Wetzig had not examined Mrs. Talbot and he conceded that one would need to speak to the treating surgeon to express more than a general opinion.

Weighing the foregoing evidence, I am not satisfied that Mrs. Talbot had a cancer of the aggressive type.

Dr. Lusby's evidence

I regret to say that in giving his evidence Dr. Lusby did not always inspire confidence in his accuracy.  He was on a number of occasions evasive and argumentative.  He had clearly done considerable research as part of his preparation for trial to ensure that his position was supported in medical literature.  I also thought a number of his answers given from memory contained more detail than could reasonably be expected in a man whose answer to a suggestion that a particular note he had written was not intended to remind him of something was, "At the age of 66 I certainly got to the stage of writing little notes for myself".  I shall refer to only two examples here; others appear in different contexts.

There was ambiguity in Dr. Lusby's evidence on the question of whether there was any residual lumpiness at the time of the consultation of 28th August 1989.  In the affidavit already referred to he stated that on that date he attempted a further aspiration but did not obtain any fluid.  There seems no doubt that this is correct.  The affidavit was silent as to the question of lumpiness.  On 24th January 1995 he said in an Answer to Interrogatories, "On the 28th August, 1989 the lump in the First Plaintiff's right breast had regressed completely.  There was no area of lumpiness nor any abnormality."  On the other hand, counsel for Dr. Lusby put it this way in cross-examination of Mrs. Talbot:

"Later on then in August '89, I suggest that there was only then a very small lump, lumpy area that he attempted to put a needle into?--  Hard lumpy area, hard lump there in August.

Just to make it clear, he did attempt to put a needle in and draw out some fluid in August '89, didn't he?--  Yes.

At that stage, what I am suggesting is that all you had left was a very small thing which might have been a lump in your breast?--  That felt like the same lump to me and it felt harder at that stage.

But you didn't tell him it felt harder, did you?--  Just felt - no, I don't know.  I don't recall."

I did not understand counsel to be conceding the existence of a lump as opposed to a lumpy area; but I did understand that the existence of a small lumpy area was being asserted.

Dr. Lusby's notes for that date began, "ISQ - see 6/12".  His evidence-in-chief relevantly was as follows:

"And the abbreviation ISQ appears again?--  Yes, but again there's no doubt in my mind that it's mastitis.

...

HIS HONOUR: What's the ISQ?--  This means it's still mastitis as far as I'm concerned.  It refers to the diagnosis.

Sorry.This is 28 August right now?--  Yes.

What does ISQ stand for?--  In statu quo.

MR CLIFFORD: You are using that referring to the fact of that what?--  To the fact that I feel she's got mastitis."

At the previous consultation (in June 1989) Dr. Lusby had noted "vague cystic feeling in a small lumpy area".  Later in his evidence-in-chief:

"Was there any time between February '89 and, say, April 1990 when there was no mastitis, no lumpiness?--  Oh, yes.  Towards - well, the consultation on 28 August '89 at this stage was no mastitis.  If she had had any lumpiness at that stage I would have been most unhappy to see her get a prescription for an oral contraceptive.  One [of] the complications of oral contraceptive is lumpiness in the breast, tenderness and soreness and lumpiness"

However since he did not prescribe an oral contraceptive on that date but rather on the date of the following consultation, that answer would appear to be a slip. 

In cross-examination:

"Doctor, in August 1989 you've written 'ISQ'?--  Yes.

What does that mean?--  That means for me the diagnosis is still mastitis.

...

Is it the case, doctor, that at that stage she must necessarily have had at the very least a continuing vague cystic feeling in a small lumpy area?--  No.  She was probably unaware of it.  This wasn't superficial.

Sorry, you haven't written down what the symptoms were, but you've indicated the same diagnosis and you've attempted to aspirate something.  Now, doctor, we - assume you are not sticking a needle blindly into her breast, there must have been something there?--  Yes.  I thought I was feeling something and I thought it might have been a cyst.

All right?--  I didn't get any fluid out of it.  So, I could have been wrong, that I wasn't feeling a cyst, anyhow.  I could have torn the cyst and lost the fluid.  There could have been so little fluid I didn't find it.

My question was directed to the absence of any physical signs in your notes on that occasion.  You haven't written down what was present, whether it was a single mass or a vague cystic feeling in a very small lumpy area or what.  There was something there, though?--  The only thing that was there at this stage obviously is something very, very small.

Why do you say 'obviously' doctor?  You haven't written it down?--  I haven't written it down, but the first thing I wrote down apart from 'ISQ' is 'see in six months'.

And then attempted an aspiration?--  Well, if she's getting another cyst I can get it emptied at that stage.  I don't need to say, 'Come back in a month's time to check the cyst'."

Later in the cross-examination, after a weekend break, the ambiguity was put to Dr. Lusby.  The relevant passage (transcript pp. 376-380) is too lengthy to set out in full.  Dr. Lusby's evidence remained ambiguous.  He attempted unconvincingly to explain the Answer to Interrogatories in re-examination.  In the end, I could not tell whether he was asserting that on 28th August 1989 there remained a small area of mastitis; whether there was merely something palpable which he thought was a tiny cyst; or whether there was nothing at all.

Second, it was suggested to Dr. Lusby that he paid insufficient attention to Mrs. Talbot's consistent complaint of a lump:

"And the plaintiff's description is that her breast lump is still there.  Breast lump still?--  Still, yes.

Isn't that right? She has come back to you and said, 'The lump is still there.'?--  I would question her.  I would say, 'How is it?'  She had a big lumpy area.  She comes back particularly to be checked.  The first thing I would say is, 'Well, how is it?'

Doctor, she is telling you, is she not, from your note, from your recollection, she still has the breast lump she previously presented to you with?--  No, she is not telling me that.  She is saying simply she is still aware of a lump as she describes it in her breast.  She is not saying it is the same lump she had on 16 February.

You don't remember anything from the word 'still'?  I beg your pardon?

You don't draw anything from the use of the word 'still'?--  The use of the word 'still' simply means there is something there still, hasn't all cleared, hasn't all gone away.

...

She is not saying that it is much smaller.  She is complaining to you of still having the breast lump which she previously presented with?--  Whether she was complaining or just admitting there was still some pathology, I don't know."

I thought Dr. Lusby's attitude argumentative and his last answer evasive of the thrust of the question.

Negligence

Dr. Lusby owed his patient Mrs. Talbot a duty to exercise reasonable care in diagnosing and treating her condition.  The standard of care which he was required to exercise was that appropriate to the class of practitioners to which he belonged.  In assessing whether Dr. Lusby conformed to that standard, evidence of other practitioners is most relevant[8].  Although he possessed the qualifications of a general surgeon, Dr. Lusby practiced as a general practitioner at all material times and had done so for many years prior to the events in question.  Consequently, in my judgment, it is appropriate to apply to him the standard of care owed to patients by a general practitioner in Brisbane at the relevant time.

[8]      See generally Rogers v Whitaker (1992) 175 C.L.R. 479.

Negligence: the early consultations

The fact that Mrs. Talbot had a lump which later turned out to be cancer and which was not diagnosed by Dr. Lusby does not conclude the question of negligence.  It is necessary to examine the circumstances and determine when and how (if at all) Dr. Lusby was negligent.  Mr. Williams Q.C. for Mrs. Talbot submitted that in failing adequately to investigate Mrs. Talbot's complaint of a lump, Dr. Lusby was negligent.  He submitted that the prospect of Mrs. Talbot suffering a potentially fatal condition was recognised from the outset.  That recognition it was submitted must affect the appropriate standard of care. 

Dr. Lusby made notes of his consultations.  His notes for 16th and 22nd February 1989 are not easily reproduced.  The former begins, "? lump R breast" and includes a diagram consisting of a circle with a dot in the middle and a hatched area roughly at 10 o'clock to the dot.  The hatched area is labelled "area of mastitis. Scan".  For 22nd February the note reads,

"M'gram Dense breasts ++: no local lesion

Rx indocid bd.  See 2/12".

Dr. Lusby said that the word "scan" referred to his "thoughts about an ultrasonic scan to avoid radiation in a young woman, a young woman who might be having further children".  I have found that he ordered a mammogram.  That showed no abnormality, but the report did specify that Mrs. Talbot had dense breasts.  The density was described as "extreme".  Dense breasts were known to cause false negative results in up to 10-15% of mammograms.  Dr. Lusby knew this. 

An ultrasonic scan is another way of detecting breast lesions.  It  is not subject to the same problem as a mammogram when it encounters dense breast tissue.  Its precise false negative rate in detecting cancer is not in evidence[9], but it is highly accurate in determining the existence of cysts.  It is able with near certainty to confirm or negate a diagnosis of a cyst. 

[9]      It exceeded 10% - see below.

Mr. Williams submitted that Dr. Lusby should have sent Mrs. Talbot to have such a scan when he received the negative mammogram.  I do not accept that submission.  Neither party suggests that a cyst existed at this stage.  While a scan might have been ordered as a check on the mammogram, I do not think the failure to order it, having regard to Dr. Lusby's then diagnosis, was negligent.  I accept the evidence of Dr. Wetzig that the clinical picture at that stage did not require this course.  I note that none of the medical witnesses suggested that the known false negative rate of mammograms ought to lead to the automatic use of ultrasonic scans whenever a negative result was reported in a woman with dense breasts.

In one respect I think that Dr. Lusby's performance in February 1989 was substandard.  He ought to have made a note of the approximate dimensions of the area of mastitis.  Having regard to the difficulty of distinguishing between areas of fibrocystic change on the one hand and carcinomas on the other, a difficulty which he recognised as fundamental, it must surely have been desirable to have had some record which would enable change in the supposed area of mastitis to be noted.  (I have referred already to Dr. Lusby's own evidence that his memory was deteriorating.)  However that omission was not then productive of any damage.

On behalf of Mrs. Talbot it was next contended that Dr. Lusby was negligent in failing adequately to investigate her complaint of a persisting breast lump on 24th April 1989.  There is no doubt that she made that complaint - it is reflected in Dr. Lusby's notes.   Although the lump may have been rather more clearly identifiable as such on this occasion than it had been in February, the position was complicated by the existence of a cyst and by a residual area of mastitis.  Mr. Williams did not contend that Dr. Lusby was negligent in failing to diagnosis cancer from the feel of the lump.  I think he was right not to advance that contention. 

Mr. Williams submitted first that Dr. Lusby failed to act upon information which he had, viz. the change in the presentation of the breast, when he should have done so.  I do not accept that submission.  The major change consisted of the reduction in size of the area of mastitis.  Dr. Pyke said that this would give him reassurance and I do not understand Dr. Eliadis' evidence to be different.  I do not think Dr. Lusby was negligent in this respect.

Next, Mr. Williams submitted that Dr. Lusby's inability completely to deflate the mass (thought to be a cyst) ought to have prompted further investigation.  There is no doubt that Dr. Lusby did aspirate a cyst, nor that a lump (which he perceived as a lumpy area) remained after the aspiration.  This fact was inconsistent with the problem being caused solely by the cyst.  Dr. Lusby did not suggest the existence of multiple cysts.  The question is whether the exercise of due care required in such circumstances that further investigation be carried out at that time. 

It is evident from the note "? resect" that the doctor was not entirely satisfied with Mrs. Talbot's position.  Nonetheless, on the evidence which he had before him, I am not prepared to find that he was negligent in not immediately ordering further investigation.  The aspirate from the cyst was clear (the position would have been different had it showed signs of bloodstains) and the affected area had apparently decreased since February.  The presence of a cyst was consistent with a diagnosis of mastitis.  While further investigation was then another option it was not in my view a necessity.  It was not negligent of Dr. Lusby to decide as he did to reconsider the matter in two months' time.  It might have been helpful had he had made a note for future reference of why a resection was a possibility, but I do not think this omission amounts to negligence.

Negligence - the consultation of 29th June 1989

Dr. Lusby drew circles around two notes which he made on 24th April 1989: "? resect" and "See 2/12".  I find that he did so for emphasis.  Dr. Lusby said that the former note meant that "it still has to be watched, and I'm not at this stage - you know, I'm not prepared to say this was the ultimate diagnosis at this stage".  In cross-examination:

"Doctor, I suggest there was something left there beyond stroma and that at the very least you had a doubt about what was left there?--  No.

Why else, doctor, would you consider resection?--  If the indication for doing an open biopsy, taking bits out of the breast, is that a cyst is of a lump, here we have a lumpy area which is already getting a lot smaller.  If you found, over quite a long period, that a lump persisted, or if you had a clear history from another Doctor or something like that, that the lump had been there for sometime, then you would move to do some sort of tissue biopsy.

...

Sorry, I thought after deflation there was no lumpy area remaining, no cyst remaining?--  No, you misunderstood me.  After aspiration, no cyst, but you will see the note 'lumpy'.  The aspiration only empties the cyst.  It doesn't do anything to the stromal reaction, the rest of the lesion.

So you weren't then confident in your diagnosis and you predicted the need for a resection?--  No, I was confident because I even put a note about 'query resection'.  There is a little note 'see in two months' immediately above 'query resect'.

Doctor, if your diagnosis was correct and you were confident in it, you would not have thought of resection, would you?--    I am thinking ahead.

HIS HONOUR:  You mean you thought you might need to do a resection in two months time?--  We are down to a small lumpy area.  If that had persisted, if in two months time, or three months or six months it still felt exactly the same, then there would probably be an indication to get some solid tissue from that."

The consultation of 29th June 1989 was therefore an important one in Dr. Lusby's management strategy.  His note for that date reads as follows:

"ISQ:Vague cystic feeling

in a small lumpy area.

See in 3/12 & ? aspirate fluid ® lab for Ca cells etc.

Indocid i day."

"ISQ" it will be recalled, stood for "in statu quo".  Dr. Lusby was asked about 29th June in his evidence-in-chief:

"Now you've written ISQ what does that mean?--  It means that I'm still certain its cystic mastitis."

Despite the persistence of the lumpy area and his note "? resect" Dr. Lusby does not appear to have considered obtaining tissue from the affected part of the breast at this consultation.  Mr. Williams submitted that there should have been further investigation of the persisting abnormality.  This submission gains some force from the explicit reference in the doctor's notes to the possible presence of cancer cells. 

Several modes of investigation were available to Dr. Lusby.  First, Mrs. Talbot could have been referred for an ultrasonic scan.  As noted above, this would have been highly reliable in detecting the presence of any cyst; it would have been reasonably reliable in detecting any solid lesion.  Second, if fluid were aspirated from a cyst, it could have been sent for laboratory examination.  Third, even if fluid were not aspirated, cells from the affected area would be aspirated, and the needle itself could have been sent to the laboratory for cytological examination.  That could have detected whether the cells in the location were benign or otherwise.  Known as a fine needle biopsy, it was a procedure which Dr. Lusby had tried in 1989, but which he found "tedious".  It was not so described by any other practitioner.  It would have been a less dramatic procedure than the one postulated by Dr. Lusby in April 1989, that of resection (or open biopsy).

A further option (albeit a less attractive one) was a coarse needle biopsy.  With this process the doctor removes a core of tissue "like a miner taking the core out of the ground" as Dr. Pyke put it.  It would normally involve hospitalisation, as it is particularly painful without anaesthetic.  It was the technique actually used on Mrs. Talbot by Dr. Pyke in December 1991.

The lump had now persisted for four months.  Dr. Lusby's reference to the possibility at the next visit of aspirating fluid and sending it to the laboratory to my mind shows that he was not fully satisfied that he was dealing only with benign mastitis.  With the benefit of hindsight it is easy to say that he should at that stage have carried out further investigations.  With some hesitation, I find that he was not negligent in failing to do so at that time.  In reaching this conclusion I am particularly influenced by the evidence of Dr. Pyke and Dr. Eliadis.  Dr. Lusby did not send his patient away; rather he resolved to continue to manage her, and asked her to come back in three months' time.  I do not think he was negligent in choosing this course. 

Negligence - the consultation of 28th August 1989

The next consultation was in fact in two months' time, on 28th August 1989.  I have already referred to some of the evidence regarding that consultation.  Dr. Lusby's notes of that consultation read:

"ISQ - see 6/12 NIL aspirated.  ?rpt m'gram."

As foreshadowed in his notes of the June consultation, Dr. Lusby attempted a further aspiration of the affected area.  He says he must have felt what he suspected to be a small cyst.  When no fluid was obtained, he took no further action.  The lump had by then persisted for six months and on behalf of Mrs. Talbot it was submitted that the abnormality was now such as to require further investigation, at least by sending the needle used during the attempted aspiration for cytological examination.

That submission gains support from the medical witnesses other than Dr. Lusby.  Dr. Pyke said:

"I think if you're convinced there was an abnormality there, so convinced that you were about to insert a needle into a patient, then you would be interested in the results regardless of what they were.  Even if you drew no fluid you would still be interested to see the nature of the cells, I think."

He thought that it logically followed if there was no fluid to send the needle off for cytology.  He thought the position should be investigated "until you get a result"; he himself would have sent the needle away for cytology "in all cases".

Dr. Eliadis was cross-examined on behalf of Dr. Lusby in this way:

"Then assume in another couple of months, that is in August '89, that there's a very small lump, that's all that's there, and that he then decides, 'Well, I will have a go at aspirating this and see if it's a cyst or not.'  Do you - would you think that's a reasonable step to take at that time?--  Yes, aiming to obtain tissue for cytological examination.

What I'm asking you is whether in 1989 there was a body of opinion which would just say, 'Try for an aspirate and if there's none there, do nothing further.', or whether it would have been universal in your view for GP's, surgeons and the like having tried an aspiration and achieved no aspirate to send the visually empty needle off for analysis or a swab?--  The reasonable course of action to have been taken on attempted aspiration of what was felt to be a cyst clinically, if there was no fluid coming back, certainly send what tissue may have been in the needle for further cytological examination and certainly it would have been very reasonable to consider her for further biopsy, if that investigation was nondiagnostic."

Dr. Wetzig, called by the defence, said the situation at this stage "certainly warrants further investigation" and thought that the proposition "any responsible medical practitioner would investigate that situation further" was reasonable comment.  He would probably have ordered an ultrasound and if thereafter he was still concerned, he would have done a fine needle biopsy.

When Dr. Lusby was asked about his failure to obtain any cytological examination of the needle used in the attempted aspiration, he replied, "It is for the same reasons I gave before".  That was a reference to evidence which he had earlier given in relation to his note made on 29th June "? aspirate fluid ® lab for Ca cells etc.".  (Although that note referred to cytological examination of aspirated fluid as opposed to the needle used in a failed attempt to aspirate fluid, nothing turns on that difference for present purposes.)  That evidence (in cross-examination) was as follows:

"I asked you whether on that date you considered at a later date aspirating fluid?--  That's another - it's a query, possibly that would happen.  As I already told you in 1989 there was nobody in Brisbane capable of reasonably doing breast cytology.

Doctor, I suggest that QML offered that service - I put it to you that QML offered that service from earlier than 1989, that it was readily available in 1989 in respect of breast cytology?--  As far as I know it was not.

...

If a cytological examination had been undertaken and there was a cancerous mass in the region from which the aspirant had been taken, it would have detected it?--  Well, if they found cancer cells, yes.

You, in fact, considered in June 1989 aspirating fluid at a later date and sending the aspirant to the laboratory for that very examination?--  Yes.  The query, of course, indicates doubt.  As I have already said, to my knowledge nobody was doing breast cytology.  People were looking at cells, but they were not trained breast cytologists as far as I know.

HIS HONOUR:  Doctor, is cytology the only way you can have this aspirate examined?--  In the fluid, yes, because you may have an odd cancer cell shed off from the lining of the cyst or occasionally inside the cyst there could be a small cancerous mass.  That is very unusual.  This is why all the reference books say if the fluid is clear not blood stained you don't waste time doing it.

...

Doctor, you would have sent any aspirants you obtained on that occasion for cytological examination, wouldn't you?--  I would have looked at any fluid I got.

When you wrote that aide memoir in June 1989 it seems that your intention then was to, perhaps, subsequently aspirate fluid and send it to the lab for cancer cell examination?--  Yes, but who is going to look at the cells for me because still back in '89 I'm pretty sure there were no breast cytologists about.  There were these people trained to look at cells and cervical smears and they were trying to start looking at breast cells.

...

Doctor, I suggest to you that the 'query aspirate fluid lab for cancer cells, et cetera' notation in June 1989 indicates your continued doubt about your diagnosis?--  It would be - if the cytology service were available you would be foolish not to avail yourself of it.

Sorry, I think we're in different points.  I'm suggesting to you that the very fact that you were even considering a further aspiration and laboratory analysis indicates that you still have not reached a final diagnosis, the diagnosis is still provisional and you have doubt about it?--  I am saying that if breast cytology is available you would be foolish not to make use of it.

Well, what's your answer to my question, doctor?  Doesn't your notation indicate that you have a doubt?  You are not confident you've got a cystic condition.  You've actually written 'CA' as part of the investigative process?--  I'm so confident that I've told her to come back in six months.  You don't tell that to a person who has cancer.

In June you said three months?--  Yes.  In August I said six months.

In June, when you were making that notation of 'See in three months', you are specifically referring to the prospect of an aspirant being obtained which may demonstrate cancer cells?--  If you think you are dealing with cancer today you don't send the patient away for three months.

I understand that, doctor.  What I'm suggesting to you is that you weren't entirely confident about your diagnosis?--  Why did I say come back in three months?  Of course I was confident."

I understood Dr. Lusby to be making (inter alia) two points.  First, he was asserting that despite the terms of his June note, he would not have sent any aspirate which he obtained in August for examination at the laboratory if it had been clear.  I find that unconvincing.  Second, there were in Brisbane in 1989 no cytologists trained to examine breast cells.  It is the second point which is material for present purposes.

It will be noticed that in the passage quoted Dr. Lusby did not go so far as to say that he would not have sent any discoloured aspirate obtained for examination because of the lack of appropriate expertise in the laboratories.  Rather (perhaps this was an ex post facto rationalisation), he seemed to suggest that attempted cytology would have been futile.  The former proposition could hardly have been maintained, having regard to the terms of the June note.  By contrast with his explanation for June, Dr. Lusby suggested the lack of relevant cytological expertise in Brisbane as the actual reason why he did not have the needle which he used in August examined: and as I understand his evidence, no other reason was advanced.  The requirement for some justification for not having the needle examined appears from his own evidence[10]: "If breast cytology is available you would be foolish not to make use of it".

[10]     Given in relation to the possible analysis of fluid, but equally applicable to the examination of the needle.

I need not decide whether I accept that a perceived absence of an appropriate cytology service was truly the reason why Dr. Lusby did not have the needle examined.  The fact is that such a service was available in Brisbane and plainly Dr. Lusby ought to have known this.  It is true that in 1989 cytology services in Brisbane did not include a specialisation in breast cytology.  However at least one leading pathology firm performed cytological examinations of breast aspirates and tissues, and the person who did that work was competent to do it.  Dr. Chong's evidence on this point was unchallenged.  It is implicitly confirmed by the fact that Dr. Lusby himself was prepared to consider sending aspirate for examination. 

In summary, professional opinion from doctors called by both sides was that the needle should have been examined.  No satisfactory reason has been advanced for not having it examined.  I find that Dr. Lusby's failure to have it examined, coupled with his failure to take any other avenue of investigation of a lump which had persisted for six months, was negligent.

Negligence - September 1989 to April 1990

Mrs. Talbot saw Dr. Lusby on another two occasions in 1989 and again in March 1990.  By now she was thoroughly reassured that the lump was not a problem.  He did not examine her breast in any systematic way and took no steps to verify that the lump had disappeared as he expected it should.  Mrs. Talbot's evidence that the lump had not disappeared was not directly challenged in cross-examination.  He did examine the breast in April 1990 but on that occasion it was diagnosed as showing only a large area of mastitis.  Dr. Lusby thought in his evidence that this area was even larger than that which he had seen 14 months earlier.  His response to it was "Rx nil", although he also noted "Rx m'gram next year".

Dr. Lusby was obliged to rely upon his memory in order to compare this area of mastitis (as he perceived it) with Mrs. Talbot's previous condition, both at the time he saw the mastitis and later, in the witness box.  It seems apparent that in April 1990 he treated the area as merely a recurrence of the condition.  He should not have done so and his failure to inquire specifically about the breast and to examine it on the three previous visits was in my view negligent.  I think he would also have been assisted in April 1990 if he had had some indication on his card of the size of the condition in February and August 1989, although given his diagnosis, I doubt whether such a notation would have made much difference to the course which he took.  I think he ought to have sent Mrs. Talbot to have an ultrasonic scan or carried out a fine needle biopsy; and after February 1990 it would not have been unreasonable to have had a further mammogram carried out.  The persistence of the condition was cause for worry, but it did not alarm Dr. Lusby.  The fact that the area was increasing in size was, I find, cause for concern.  That fact was more suggestive of a tumour than of fibrocystic disease. 

Dr. Lusby was cross-examined as to why he had prescribed nothing for what he perceived as a new and enlarged area of mastitis in April 1990.  He responded by saying that his first priority was to give relief from the vaginitis which Mrs. Talbot was also suffering at that time.  He seemed to suggest that the complete absence of treatment was her fault, in that she failed to return for a further consultation.  I find that he did not tell her that any such consultation was necessary.  It was not put to her in cross-examination that she had been given any such advice, and there is no note on Dr. Lusby's card to suggest that it was given.  That is in marked contrast to his notes for February, April, June and August 1989.  If anything, the doctor's notes for 7th April 1990 imply that all he intended to do was to obtain another mammogram in the following year, and he may well have told her this.  It is hardly surprising that she did not return for a further breast examination. 

In my judgment Dr. Lusby was negligent on each occasion on which he was consulted from August 1989 until April 1990.  On each occasion, circumstances existed which called for further investigation.  The lump of which Mrs. Talbot complained had not gone away.  Dr. Lusby was, I think, satisfied that he was dealing only with a case of mastitis.  He should not have been so satisfied. 

Causation

What difference would it have made if Mrs. Talbot had undergone further investigatory steps during the latter part of 1989?  Would the cancer have been detected, and if so, could it have been cured?

There was no evidence that another mammogram would have been any more successful in detecting the cancer in Mrs. Talbot's dense breast than the one in February 1989.  The lump was gradually getting bigger; and a mammogram in December 1991 showed classical signs of cancer.  However since the subject was not explicitly addressed in the evidence, I am not prepared to find that the lump would have been detected by a mammogram in April 1990 or earlier.

All of the other investigatory procedures suggested have their own false negative rates.  These false results are not caused by breast density, although there was no evidence of what does produce them.  The existence of false negativity is the reason why a negative result should not be treated as conclusive on the basis of any one test.  I accept Dr. Wetzig's evidence that the false negative rate for ultrasound investigation for cancer in 1989 may have been a little higher than the range 3-10%; and that for cytological examination was within that range.

It is not possible on the evidence to find with any sort of precision the random chance of a false negative result in both of two successive tests; but I am satisfied that the chance would be very small indeed.  At one stage Mr. Williams suggested that one could estimate the chance of two false negative results by multiplying the chances of each considered separately.  The evidence does not establish that this is permissible; and in any event, the correct question for present purposes is not, what was the chance of two false negative results, but what was the chance of one such result in the next investigation.  Without being too precise about it, I find that the chance was of the order of one in ten.  In other words, had a further investigatory procedure (cytology or scan) been undertaken in August 1989, there were approximately nine chances in ten that it would have disclosed the presence of the cancerous lump.

The next question is, would detection of the lump in August 1989 have enabled Mrs. Talbot to be cured, or at least, have improved her chances of that outcome?

In most cases, breast cancer consists of a hard dense tumour.  The major exceptions (about 15% of cases) present as either a tender lumpy area or a surface discharge.  Such statistics as exist suggest that if cancer were left untreated from the time of diagnosis, about 50% of patients would be dead within 2½ years.  The majority of breast cancers begin in the duct or glandular part of the breast.  Some cancers then grow by spreading through the duct system without invading the remainder of the breast, while others soon begin invading areas of the body outside the duct system.  Most breast cancers eventually spread to the lymph nodes.  Some spread there first, and thence to the rest of the body; others spread to the lymph nodes and to the rest of the body simultaneously.  Cancers in the outer half of the breast normally spread to the lowest lymph nodes first and thence to the highest but there is a small incidence where cancers go straight to the highest lymph nodes.  The involvement of the highest lymph node is a reliable indicator that the cancer has either spread or is due to spread to the rest of the body.  Once the cancer gets beyond the lymph nodes it is incurable, and even when it has not gone beyond the lymph nodes, 50% of sufferers die within 10 years from it.  On the other hand, if there is no involvement of the lymph nodes the prognosis is, given proper treatment, quite bright.  In cases involving the removal of a half inch tumour with no lymph node involvement, 90% of patients survive for five years and most of those have no further effect from the cancer thereafter[11].

[11]     Most of these findings are based on Dr. Pyke's evidence; none, as I understand it, is controversial.

It is therefore important to determine whether the cancer had spread to Mrs. Talbot's lymph nodes or beyond in August 1989, the earliest date at which I have found that Dr. Lusby was negligent.  The evidence in relation to this is unavoidably imprecise.  Most of the evidence was given on the basis of statistical probabilities, and with much of it, the probability was expressed by reference to a half inch or 1 cm lump[12].  However the size of Mrs. Talbot's lump in August 1989 is unknown.  She estimated its size by external feeling in February 1989 at about half an inch.  The lump may have been smaller - Mrs. Talbot may have been feeling tissue - and the external feel of a lump in the breast is not the same thing as the measurement of an excised tumour.  She also said it grew slowly over the whole period from 1989 to December 1991.  However there is no evidence that it had grown to any significant degree by August 1989. 

[12]     Below about 1 cm the tumour is not generally palpable.

Despite these uncertainties I propose to approach the matter on the basis that the evidence relating to a half inch lump is applicable to Mrs. Talbot's condition at the relevant time.

Dr. Pyke thought there was a minority of cases, about 20-25%, where cancer would already have spread to the lymph nodes by the time the tumour became palpable.  These were the aggressive cancers.  About half of these (or slightly fewer) would be cases where the cancer had spread beyond the lymph nodes[13].  However in fewer than 5% of them, perhaps even fewer than 1%, would the metastasis be demonstrable.  Dr. Wetzig also thought that 20-25% of women with a 1 cm tumour might have positive lymph gland involvement.  As I understood it, the evidence was based on statistics rather than any clinical assessment of Mrs. Talbot.

[13]     Cancer spreads to the lymph nodes through the lymphatic system and to other parts of the body through the blood system.  However it seemed to be assumed that except perhaps in abnormal cases, if cancer had spread elsewhere in the body it would also have spread to the lymph nodes.

If Mrs. Talbot's cancer was in the aggressive category it would have reached her lymph glands and possibly beyond by the time she first came to see Dr. Lusby about the problem.  On this basis, Mr. Clifford contended that I should reduce any award of damages by 20-25% to begin with, and then by a further amount to take into account other factors.  On the other hand, Mr. Williams submitted that I should find as a fact that Mrs. Talbot fell into the larger group, the non-aggressive cancers.

In my judgment it is most unlikely that Mrs. Talbot had an aggressive cancer in February 1989.  If the cancer was of the sort which could grow to 4.5 cms in size in eleven months it must surely have become obvious not only to Mrs. Talbot but also to Dr. Lusby by April 1990[14].  Neither of them suggested the existence of such a large mass at that time.  On the other hand, the evidence as to doubling times is quite consistent with Mrs. Talbot's description of the lump growing steadily larger over the period from February 1989 until December 1991.  All breast cancers will eventually metastasise if left untreated, and I accept Dr. Pyke's evidence that the spread of distant metastases was consistent with the growth of Mrs. Talbot's tumour over the period.  For this reason, I find on the balance of probabilities that in August 1989 the cancer was of the non-aggressive type, and that it had not spread to Mrs. Talbot's lymph nodes.  That is a finding of past fact.  It follows that the discounting of 20-25% urged by Mr. Clifford should not be made.

[14]     All of the expert witnesses except Dr. Beadle appeared to assume that in an aggressive cancer, speed and extent of growth go hand in hand.  Dr. Beadle expressly said they go together, although he thought it was possible to have one without the other.

I should record that Mr. Williams expressly refused to put a submission that I should make such a finding (of past fact) based solely upon the statistical probability given in evidence by Dr. Pyke and Dr. Wetzig.  Such an approach to fact finding in relation to past facts might have been justified by the decision of the House of Lords in Hotson v East Berkshire Area Health Authority[15] and also by certain dicta in Malec v J.C. Hutton Pty Ltd[16].  Because of this refusal, had I been unable to make the foregoing finding on the basis stated, I would have adopted Mr. Clifford's discounting approach.  For what it is worth, I would add in passing that I think Mr. Williams' abstention was quite correct in a situation such as this, where the past fact in question would have had to be inferred solely from statistical or epidemiological probabilities rather than from evidence relating to the particular circumstances of the particular plaintiff.  Such a case is not one where the issue of causation turns on what the plaintiff would have done.  The conventional approach required in the latter situation[17] is not required in the former.  The case would fall within a category referred to by Deane J. in Commonwealth v Amann Aviation Pty Ltd in which "there is a need for modification or reassessment ... of the conventional approach that, in assessing damages for what has occurred in the past, a court decides on the balance of probabilities and assumes certainty where none in truth exists"[18].  This modified approach was adopted by Thomas J. in Sturch v Willmott[19], a decision delivered after I reserved judgment in the present case, in not dissimilar circumstances.

[15] [1987] A.C. 750; see also Wilsher v Essex Area Health Authority [1988] A.C. 1074.

[16] (1990) 169 C.L.R. 638.

[17]     See Sellars v Adelaide Petroleum NL (1994) 179 C.L.R. 332 at p. 353.

[18] (1991) 174 C.L.R. 64 at p. 124; see also the cases and articles cited by His Honour, ibid, note 32.

[19]     Unreported, S.C. 1302/94, 13.4.95.

I have already found that even with treatment before the lymph nodes are involved, not all cancers are cured.  It follows that what the plaintiff lost through Dr. Lusby's negligence was the chance of a cure.  She would have had "a particularly good prognosis", to use Dr. Pyke's words.  His evidence was unchallenged.  I assess the chance in accordance with it at 90%.  I shall deal further with this aspect after I assess quantum.

The cure itself would not have been free from damage.  A lumpectomy would have been required at a cost of some $5,000.00.  That I understand to be an operation under general anaesthetic involving the surgical excision of the tumour from the breast.  Even with allowance for plastic surgery, I suppose some scarring would have been inevitable.  Radiation treatment may well have been necessary.  A complete mastectomy might have been required if the tumour had been directly beneath the nipple, but I find that it was not. 

On these bases I shall assess damages.

Pain and suffering and loss of amenities

I have already described the operation which Dr. Pyke performed upon the discovery of Mrs. Talbot's condition.  She remained in hospital over Christmas 1991, being discharged on 28th December that year.  At first, she could not move her arm or lift her baby.  After physiotherapy she regained some function in the arm but it remains weaker than it was before the operation.  In February 1992 she commenced chemotherapy, which continued periodically for 15 months.  Each time she had it she became extremely tired and "generally just felt lousy" for about four days.  She was obliged to undertake dietary alterations under medical supervision.  Her physical activity has been severely curtailed.  Prior to the surgery she played netball twice a week.  On Dr. Pyke's advice she ceased all jarring exercises and had to be very careful in lifting and other exercising due to the damage to her back.  She was obliged to cease breast feeding her baby, which required for a time the expression of milk from her remaining breast.  She needed help with showering and bandaging.  For some weeks she was unable to do any housework, care for her children or drive.  For about three months her mother lived in to provide assistance, and her husband also contributed to things which she otherwise would have done.

With time she became progressively more mobile.  She obtained a prosthesis to replace the right breast.  In December 1994, when it was found that the cancer had spread to her liver, chemotherapy was resumed.  Since then she has suffered bloating in the stomach, with extreme discomfort and tiredness for three or four days after each treatment.  The liver is protruding into the stomach cavity and she says she can feel it.  In the same month she suffered a crushed vertebra as a result simply of sneezing.  She was given radium treatment for her back.  She has been unable to do most housework.  She still gets pain in her back despite the radium treatment and has to rest to prevent its aggravation every day, or more accurately to alleviate the pain.  She has been taking pain killers.  She can carry a small saucepan of water, but nothing as big as a roasting dish of meat.  She is very aware of her condition, as are her children.  It understandably distresses her to hear them talking about it.  Her husband has been unable completely to come to grips with the situation, and as he showed in answers in his evidence-in-chief, he is unwilling or unable to discuss it with her.  This must inevitably aggravate her stress and anxiety.

I formed the impression that she bore her afflictions with fortitude and that in articulating them she tended toward understatement.  An award under the present heading must take into account the pain which she has suffered, the disabilities under which she has been placed, the traumas (including medical treatment) which she has undergone, but not only these things; it must also take into account the inevitable distress, anxiety and sense of loss which she must bear for the four years or so of life left to her after the discovery of her condition.  She faces the knowledge of increased distress and pain, and further treatment, as death approaches.  On the other hand, the award must be mitigated by taking into account the nature and consequences of the treatment which she would have been obliged to undergo had there been a timely diagnosis of her condition.

It is proper to refer to comparable verdicts in personal injuries cases not as precedents, but rather to ensure that the exercise of judgment which is made maintains proportionality and equality of treatment for all litigants.  I respectfully agree with what was said about the approach to this topic by Clarke J.A. in Sullivan v Micallef[20].  Although His Honour was in that case dissenting as to the application of the principle to the facts of the case, I do not understand his statement of the law to be affected by that fact.

[20]     (1994) Aust. Torts Rep. ¶ 81-308.

In the present case, Mr. Williams referred me to Locher v Turner[21], and Sullivan; and since I reserved my decision in this matter, Mr. Clifford's solicitors has provided me with a copy of the decision in Sturch.  In that case, Thomas J. observed that the level of damages under this particular head varies considerably from state to state.  I agree.  I cannot understand why this should be so.  However it appears to be the practice in this state to ignore awards made in New South Wales, and in the absence of any detailed argument as to the validity of the practice, I propose to follow it. 

[21]     Demack J., unreported, S.C. 102/94, 22.12.94.  This decision has since been affirmed on appeal; but the appeal did not involve issues presently relevant.

If Mrs. Talbot survives until September this year as the medical evidence suggests she will[22], she will have undergone nearly four years of distressing terminal illness.  Having regard to the circumstances to which I have referred earlier, including the circumstances of mitigation, I assess her damages under this head at $50,000.00.

[22]     See also exhibit 30.

In case it should matter in the future I should add that were I to take awards in New South Wales into account my assessment would be $100,000.00.

Most of the suffering will have occurred prior to the delivery of this judgment.  $45,000.00 of the award should bear interest at 2% from 20th December 1991.  I reject Mr. Williams' submission that interest should be allowed from 1989.

Loss of expectation of life

As Mr. Clifford submitted, damages under this head are awarded as a conventional sum.  It is therefore appropriate to have particular regard to recent similar cases.  In Sturch Thomas J. awarded $7,500.00 under this head.  I make the same award.  I reject Mr. Williams' submission that it should bear interest at commercial rates since 1989.  The conventional amount has steadily increased over the years and in my judgment the reasoning in MBP(SA) Pty Ltd v Gogic[23] is equally applicable here.  In the absence of evidence showing how long before 20th December 1991 Mrs. Talbot's condition became terminal, the interest should run from that date.

[23] (1991) 171 C.L.R. 657.

Past economic loss

Mrs. Talbot was a partner with her husband in a business.  It was not always a very good business.  She said that she would have exercised her earning capacity in the business and that by reason of her illness from December 1991 onwards, the partnership was obliged to employ extra labour, thereby diminishing her income.  The defence was content to calculate past economic loss on this basis.  It seems to have been assumed by both sides (and I would certainly so find) that from the time of her operation in December 1991, Mrs. Talbot's earning capacity was totally destroyed.  Mr. Clifford provided me with an extensive analysis of the decision of the Court of Appeal in Seymour v Gough[24], but since there was no dispute between the parties as to the application of that case it is unnecessary for me to spend time analysing it here.  The parties were also agreed as to the calculation of the amount to be allowed in respect of the replacement labour, the relevant figure being at the date of addresses $22,300.00 after deductions for tax.  On my calculations it is now $24,700.00.

[24]     Unreported, C.A. 239/93, 14.12.94.

Mr. Williams submitted that in addition there should be allowed two "global sums" relating to loss of productivity.  He contended that substitute employees were not as diligent as Mrs. Talbot would have been, nor as interested, and that this was productive of economic disadvantage.  Second he argued that the prospects of the business have been impaired by inattention from both plaintiffs.  I do not think the evidence supports either submission.  Indeed, if anything, it favours the making of some discount, since there was some chance that Mrs. Talbot would have been required to look after and be distracted by her children.

That brings me to the question whether and to what extent the above figure should be discounted to take account of the possibility that at least some additional labour would have had to be hired in any event, due to Mrs. Talbot's being required to look after her children and attend to other household duties.  Mrs. Talbot contended that her relatives would have provided continuous free full time child care for the pre-school children during school hours and for all the children during school holidays.  She said she would have closed the business earlier than in fact it has been closing (3.00 pm or 3.30pm instead of 4.30pm) to enable her to look after the children thereafter.  These assertions were made during cross-examination.  No evidence was called from any relative who might have been a potential babysitter, nor did Mrs. Talbot give any evidence of their occupations and available time.

In my judgment, Mrs. Talbot's view was unduly optimistic.  I think there was a real and substantial risk that she would not have been able to devote the amount of time to the business which she anticipated, and that additional labour would in any event have been required.  In my judgment the damages for past economic loss should be discounted by one-third to take account of this contingency.

I therefore assess those damages in the sum of $16,450.00 (after rounding).  Interest should be allowed on that figure from 7th January 1992[25] at 6% per annum.

[25]     Mrs. Talbot was going to take a three week holiday in any event.

Future economic loss: the period up to death

Both sides addressed on the basis that at the date of trial Mrs. Talbot's life expectancy was six months, although it is not clear whether Dr. Pyke's evidence in support of this was intended to run from January or March 1995.  Since I reserved the matter my associate has received a letter from Mr. Williams, written without objection from Mr. Clifford, informing me that the expected physical and mental deterioration of Mrs. Talbot has occurred and is continuing[26].  I therefore proceed on the basis that she has three months left to live.

[26]     I have had Mr. Williams' letter marked as exhibit 30.

I accept the basis of calculation contended for by the defendant for this item.  Over three months the appropriate figure is $2,080.00.  That is higher than the amount calculated on the basis put forward on behalf of Mrs. Talbot.

Future economic loss: the lost years

It is now clear that damages are recoverable by a plaintiff whose expectation of life is reduced in respect of loss of earning capacity which would have been exercised during the lost years[27].  It is also well settled that, at least where the amount of the plaintiff's earnings is a fair reflection of the plaintiff's earning capacity, that value is to be calculated by subtracting from the gross amount of the plaintiff's lost earnings the amount which would have been expended on the plaintiff's "living expenses" or maintenance[28].  In this context, the plaintiff's living expenses do not include amounts expended for the maintenance of others, including dependants[29].

[27]     Skelton v Collins (1966) 115 C.L.R. 94.

[28]     Sharman v Evans (1977) 138 C.L.R. 563.

[29]     Fitch v Hyde-Cates (1982) 150 C.L.R. 482.

The parties differed radically in their submissions as to how I should approach the assessment of this item.  For Dr. Lusby it was submitted that the matter should be approached on the basis that Mrs. Talbot would have continued as a member of the partnership, with the consequence that the appropriate loss would be half the replacement cost of her labour less tax and maintenance.  It was submitted that the evidence did not support a conclusion that the partnership profits were or are going to increase.  There was no submission as to the number of years over which the calculation should be made.  On behalf of Mrs. Talbot, it was submitted that her loss of earnings in the lost years consisted of the whole of her share of partnership income for those years, an amount said to be approximately $25,000.00-$30,000.00 per annum, with prospects of substantial improvement in the short term.

I do not see how the defendant's approach can be supported.  Determining Mrs. Talbot's loss at half the cost of replacement labour in the partnership is sensible enough so long as she is alive and continues in any event to receive half the partnership profits.  In that situation it represents a fair measure of the loss which the destruction of her earning capacity has produced.  Suppose, however, the partnership had been terminated when Mrs. Talbot's condition was discovered; then (at least where the termination was caused by her condition) the same reasoning would be inapplicable.  That situation, it seems to me, is not far removed from the one which will occur when the partnership is dissolved by her death. 

The evidence is not very satisfactory.  There is no evidence of the standard of education which Mrs. Talbot attained.  She was married at the age of 20 and prior to that time had done secretarial work.  She may have continued to work until the birth of her first child in 1985.  As far as I can tell, she has no formal post-school training.  For some years prior to 1991 she and her husband conducted a bread run in partnership.  He did the major part of the work and was clearly the dominant partner.  She kept a cash analysis book and wrote out cheques.  She sent out bills and marked off payments as they were made.  She also did some deliveries. 

A week before Mrs. Talbot's cancer was diagnosed, the partnership had expanded by buying a cake shop at Lutwyche.  It was intended by the Talbots that, to the extent possible, Mrs. Talbot would work in the shop during the day and do the books at home at night time.  The cake shop was predominantly a wholesale cake shop and they intended to operate it in conjunction with the run.  The plan was that Mrs. Talbot would operate the shop while Mr. Talbot looked after the bread run.  It seems to be accepted by both sides that as a result of the cancer, one extra employee was required by the business.  Partly because of Mrs. Talbot's illness and partly as a result of financial losses due to the misconduct of an employee of the business, it was necessary to sell the bread run in April 1992.  The shop was continued with the emphasis switched to retail custom.  A period of acute financial stringency followed.  Some bankruptcy proceedings were brought against Mr. Talbot, but it appears he was not made bankrupt.  In 1994, a second shop was leased at Albion.

Mr. Ballard, the plaintiffs' accountant gave evidence of cash flow projections with a view to establishing the profitability, both present and predicted of the partnership.  I thought his evidence unsatisfactory.  Many of the figures were rubbery and the assumptions underlying the predictions in some cases were dubious.  In the end neither Mr. Ballard nor Mr. Talbot seemed able unequivocally to verify the figures that were produced. The estimates seemed to be grounded as much in hope as in fact.

In these circumstances, I do not think this evidence supplies a basis for quantifying the value of Mrs. Talbot's earning capacity during the lost years.   

I am however quite satisfied that, subject to the demands of her children, Mrs. Talbot would have engaged in gainful employment.  She had worked previously; and the family situation demanded that she work in the future.  I accept her evidence that it was always intended that she would do so.  While in the initial years it is appropriate to discount to take into account her need to look after the younger children, I am satisfied that her capacity would, by the time the children were all at school, have been substantially fully exploited.  I think it would have been exploited in the partnership business, at least to begin with.  There was no guarantee that the business would prosper; but on the other hand it might have proved particularly profitable.  There was no guarantee that her husband would wish to continue to operate in partnership; or even to operate his own business.  The time may well have come when he would prefer to work as an employee.  In all the circumstances, there are in my judgment too many uncertainties to warrant valuing Mrs. Talbot's earning capacity by reference to any projected estimates of partnership profitability.

I therefore propose to approach the problem on the basis that Mrs. Talbot could at least have earned money as a shop assistant.  Possibly she could have done a little better than that.  Her capacity may not have been able to be exploited fully until about 1997, when all her children were at school, but rather than complicate the calculations unnecessarily, I shall take this fact into account as one of the contingencies reducing the total number of years over which the capacity is exploited.  I shall do the calculations over 20 years rather than 23 or 25 years.

From exhibit 29 I infer that a reasonable weekly wage to assume as the applicable wage at the time of Mrs. Talbot's death will be $400.00 per week gross.

I turn now to the question of the deduction for her maintenance.  Here the evidence was in fairly short compass.  Mrs. Talbot estimated that she would have spent $50.00-$60.00 per week in relation to food and clothing maintaining herself prior to her diagnosis.  I was not told how this figure was derived.  Mr. Clifford made a fairly desultory attempt to pin it down in cross-examination.  He established that it included petrol for the car, going out to lunch occasionally with the girls, to the pictures occasionally, and buying "little extra things" like skin creams, underclothes and clothes!  It also included food, but did not include a share of rent.  It did not include medications, nor apparently did it make any allowance for the requirement for Mrs. Talbot to have better casual clothes had she been working.  A significant part of the use of the car was spent in ferrying children. 

It appears from exhibit 16 that Mr. Ballard was told that the family living expenses are currently $350.00 per week; but that is on the basis that Mrs. Talbot has cancer, not on the hypothetical basis that she does not.

Mr. Clifford submitted first that "what must really be assessed is the surplus i.e., the savings".  He made that submission in reliance upon a passage in Sharman v Evans:

"In consequence it is only the loss of surplus income, whether in the form of cash savings or of acquired assets, which might have been derived during lost years that is to be compensated for... ."[30]

[30] (1977) 138 C.L.R. 563 at p. 581.

In my judgment, Mr. Clifford's submission misconceives the effect of the joint judgment of Gibbs and Stephen JJ. from which the foregoing passage is taken.  The passage occurs in a paragraph where their Honours are summarising the effect of the judgment of Taylor J. in Skelton v Collins.  Their Honours' view (with which Jacobs J. concurred on this point) was set out later in the judgment:

"This result of course departs from the understanding of the effect of Skelton v Collins expressed in the English texts and in the Law Commission's Report; perhaps more importantly it appears to ill accord with any rational principle of compensation. ... . [We] have concluded that, properly regarded, Skelton v Collins does not require that anything, other than the cost of a plaintiff's own maintenance, should go in reduction of damages for lost earning capacity for 'lost years'. ...  In these circumstances it would, we think, be wrong to treat Skelton v Collins as any authority for the proposition that only surplus income, in effect savings, are to be taken into account in assessing economic loss in the 'lost years'.  It is well enough to take into account in reduction of damages the likely expenditure on the plaintiff's own maintenance ... .  [No] further deduction is, we think, called for in order to ensure that no more than proper compensation is made to the plaintiff."[31]

[31]     Ibid at pp. 581-2.

Murphy J. wrote:

"If a reasonable application of the principle of restitution is to deduct from assessment of lost earning capacity what would have been maintenance of the respondent during the lost years, it should be the bare amount necessary to enable her to use the earning capacity.  Her spending for enjoyment or maintenance of others is irrelevant."[32]

[32]     Ibid at p. 599.

Further support for this view is to be found in the judgment of Mason J. (with which all other members of the Court agreed) in Fitch v Hyde-Cates[33].  There, His Honour described the amount to be deducted as the plaintiff's "probable living expenses in the lost years"[34], and "probable living expenses to enable [the plaintiff] to earn future wages"[35].  His Honour continued:

[33] (1982) 150 C.L.R. 482.

[34]     At p. 497.

[35]     At. p. 498.

"As this Court has said on many occasions in the past, the deceased is entitled to compensation for his loss of earning capacity, not loss of wages.  This loss of earning capacity is reflected in a loss of earning capacity or perhaps a reduced earning capacity in the years of life that remain and a loss of earning capacity in the years of which the victim has been deprived.  Once the relevant loss is identified as a loss of earning capacity there is a difficulty in saying that there should be deducted future expenditure on the living expenses of the deceased's dependants as well as future expenditure on his own living expenses which should be regarded as an essential condition of the exercise of his earning capacity."[36]

[36]     My emphasis.

In my judgment, those passages make it clear that the pictures, lunch with the girls and petrol for ferrying the children ought not to be included in the amount deducted.  If it could be said on the evidence that the plaintiff would, throughout the lost years, have been provided with accommodation without the need for any expenditure on her part, it would also be correct in my view to disregard rent.  In the present case, that was probably the short to medium term position (there was no suggestion that the plaintiff's presence would have increased the amount of rent otherwise payable for the family) but I do not think the evidence demonstrates any certain continuity of that position throughout the whole of the lost years.  Substantial allowance must be made for rent.  Moreover, although Mr. Clifford was prepared to approach the matter on the basis that the estimate of $50.00 or $60.00 was a current estimate, I thought the evidence was clearly to the effect that it was based on pre-December 1991 costs.  In my view it must be increased to a level which might be expected to be the living expenses at the beginning of the lost years.  Since that time is imminent, it is sufficient in the present case to apply current expenses and not to discount. 

I was troubled that there was no evidence which would enable me to fix the appropriate figure.  In the absence of a figure I think the plaintiff would fail to prove the net amount of the economic loss for the lost years.  However Mr. Clifford submitted I should adopt a figure of $100.00 per week, not on the basis of the evidence but apparently as a matter of commonsense.  (Whether that is the same as judicial knowledge I need not speculate.)  I am therefore emboldened to make my own estimate of expenses; and although I do not derive the figure in quite the same way as Mr. Clifford submitted, I think the figure for which he contended, $100.00 per week, is reasonable.  An average deduction of $65.00 per week for tax must also be made[37] leaving a net loss of $235.00 per week for the lost years.  Discounted at 5% over a period of 20 years, that comes to $156,500.00.

[37]     Tax on $20,800.00 per annum I calculate to be $3,392.00.

Griffith v Kerkemeyer: to date
           Mrs. Talbot's claim under this head contained two elements.  They were:

(a)A claim for specific child care assistance;

(b)A claim for general housework assistance.

The latter claim was quantified at $26,775.00 and counsel for Dr. Lusby accepted in address that it had been made out.  The former claim was based on child care actually provided in respect of Mrs. Talbot's children.  The care provided up to the time of trial was particularised in exhibit 3.  The total number of hours was 5,188.5 hours.  During addresses I questioned whether a plaintiff could make a claim under this heading for services needed by and provided to her children.  Counsel for Dr. Lusby accepted that Hodges v Frost[38] and Waters  v Mussig[39] stood as authority for the proposition that a plaintiff may recover damages for loss of capacity to perform services for other members of the family.  It was not suggested by the defence that I should not follow that authority.  Accordingly, I do so.  An inevitable consequence of doing so, it seems to me, is an implicit determination that a plaintiff's need to perform services for other members of her family is a need within the meaning of Van Gervan v Fenton[40] for which damages are recoverable.

[38] (1984) 53 A.L.R. 373.

[39] [1986] 1 Qd.R. 224.

[40] (1992) 175 C.L.R. 327.

Despite some cross-examination which suggested a degree of inaccuracy in the schedule, the defence did not in the end challenge the number of hours claimed in exhibit 3.  It did however suggest that the rates in exhibit 3 were excessive; and that I should apply rates for the provision of child care found in the evidence relating to the Lady Gowrie centres.  It is unnecessary to detail that evidence.  The essential difference between the rates claimed by the plaintiff, based on the evidence of the Domicare organisation, and those contended for by the defence was that the former were for services provided in Mrs. Talbot's home; whereas the latter were for child care provided elsewhere.  It was not suggested that the Domicare rates did not fairly reflect the value of the services provided.

Although the evidence was less than precise about the matter, it seems that the gratuitous care reflected in exhibit 3 was provided at Mrs. Talbot's home.  It therefore seems to me that the Domicare rates are the appropriate ones to apply in regard to those services.  It might have been suggested by the defence that it was unreasonable to proceed on this basis; that it would have been practical to have used such a service as the Lady Gowrie service; and that there was no need for in-home care.  Such  an approach was hardly touched upon in cross-examination of the plaintiff and her husband.  It raises a number of issues which simply were not canvassed in the evidence.  I do not think it is open to the defence to adopt that approach in those circumstances.

The plaintiff claims for this item a total of $45,000.00.  That figure is computed by rounding the number of hours to 5,000 and multiplying by what is described in Mr. Williams' submission as "an average rate of $9.00 per hour".  I do not see how this average is derived from the evidence.  Strictly, I would have thought the proper approach would have been to go through the schedule item by item applying the appropriate Domicare charge.  Where that charge was properly made on a live-in basis, the appropriate live-in rates should be applied.  Where more than one child was to be looked after at once, one carer should have been able to do the job.  I see no reason why the Domicare administration charges should be excluded from the value of the service.  It may well be that if this exercise were carried out, the total figure would be greater than $45,000.00.  What I propose to do is to increase that figure to $50,000.00 to take account of the period during which judgment has been reserved; to increase the amount of $26,775.00 to $29,452.50 for the same reason; and to allow the total, rounded to $80,000.00, under this head.  However if the defence contends that a detailed calculation carried out under exhibit 3 would yield a lesser figure, I will hear argument on the point.

I see no reason why interest should not be allowed on the sum at 2% per annum since 20th December 1991.

Griffith v Kerkemeyer: the period up to death

By averaging the foregoing, an amount of $5,865.00 should be allowed for the period of three months from the present date.  If anything, this amount would be too low: the need for help will increase in the last months.

Griffith v Kerkemeyer: the lost years

Mr. Williams contended that an amount should be allowed beyond Mrs. Talbot's death "in respect of her inability to perform her function as wife, mother and housekeeper".  Insofar as Mrs. Talbot would have provided services to Mr. Talbot as a wife and housekeeper, the matter can be dealt with in his claim.  However I apprehend that Mr. Williams' major concern in relation to this submission was in relation to the care of the children during the lost years.

Mr. Williams' first submission was that the relevant loss for the purposes of a Griffith v Kerkemeyer claim is the loss of capacity in the plaintiff to look after her children.  That loss he submitted does not (unlike the loss constituted by her personal need for services) die with her.  It is maintained for as long as she would have provided the services in respect of which the loss occurred.  The loss is a loss of a capacity, and it is an error to describe the relevant loss for these purposes as a need. 

That argument has been discussed and rejected by Thomas J. in Sturch v Willmott[41].  I agree with His Honour that the argument is inconsistent with the decision of the High Court in Van Gervan v Fenton and I need not repeat here his demonstration of why that is so.  I would not allow this claim on that basis.

[41]     Unreported, S.C. 1302/94, 13.4.95.

However in the circumstances of the case before me, that is not in my judgment sufficient to dispose of this point.  Once it is accepted that the loss of capacity to perform services for other members of the family constitutes a need for which damages may be awarded under Griffith v Kerkemeyer, I see no basis for distinguishing between services which would have been provided before a plaintiff's death and those which would have been provided thereafter.  When the cause of action becomes complete, the plaintiff has a need which extends for the whole period for which the services in question would be required.  It is not a divisible need, or at least not one divisible by reference to the date of the plaintiff's death on any logical basis that I can see.  In my judgment, once it is accepted that the provision of services for others constitutes a need of the relevant sort, there is no basis for restricting damages by reference to the lifetime of a plaintiff.

I must therefore make some assessment of the value of the services which would have been provided by Mrs. Talbot to her children, in order to determine the value of the need.  The question of what services would have been likely to have been so provided for the period after 1995 simply was not addressed directly in the evidence.  Mr. Williams contended that the required services amounted to 40 hours a week, on the basis of an answer by Mr. Talbot that his time requirements in looking after the children "if something happens to Kerry" (a euphemism I think for her death) "will be full time".  I think that is a flimsy foundation for such an assessment.  Despite the fact that the figure was not criticised by counsel for the defence, I am not prepared to adopt it.  Somewhat arbitrarily, but having regard to exhibit 3 and also to the fact that the children will require less assistance as they grow older, I am prepared to allow 20 hours a week.  Mr. Williams claimed for 12 years.  I think the period should be discounted for the ordinary contingencies to 10 years, by which time the youngest child will be nearly 14.  The rate claimed of $9.50 per hour seems reasonable, perhaps low.  Discounted for present value at 5% per annum, I calculate a rounded amount of $78,500.00.

Mr. Williams also supported the claim on the basis of the decision in Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad'[42].  Such an argument was rejected in Sturch and also in Locher v Turner[43].  I need not consider it here.

[42] (1976) 136 C.L.R. 529.

[43]     Demack J., unreported, S.C. 102/94, 22.12.94.

I should add that I have been conscious in relation to all aspects of the Griffith v Kerkemeyer claims of the need to avoid double counting.  I have not discounted these claims on the basis that the plaintiff might in any event have needed to engage child care and pay for it, because I have taken that possibility into account as a discounting factor in relation to the plaintiff's claims for economic loss.

Future costs

Dr. Eliadis and Dr. Pyke gave evidence of the cost of future hospitalisation and treatment.  Assessed conservatively on the basis of one month of hospitalisation and five months of out-patient treatment subsequent to the date of hearing, that came to $16,150.00.  I accept Mr. Williams' submission that there would be additional out of pocket expenses and I allow this head in the sum of $17,500.00. 

Special damages

Special damages have been agreed in the sum of $28,833.60 less a deduction for expenses which would have been incurred in any event.  Consistently with my earlier findings, the appropriate deduction is $5,000.00.  I therefore allow damages under this head in the sum of $23,833.60.  By agreement, interest is to be calculated on $12,000.00 of this at 6% from 20th December 1991.

Mr. Talbot's claim

Mr. Talbot claims damages for loss of consortium.  An element of that loss is the loss of services provided to him by Mrs. Talbot.  He concedes that to the extent that she recovers damages under Griffith v Kerkemeyer in respect of her need created by her inability to provide such services, there can be no doubling up.  I have allowed her claim in respect of services provided to the children and general household services[44].

[44]     On the basis, in part, of the defendant's concession in relation to Hodges v Frost - see above.

The claim for loss of consortium however includes a claim for the balance of the "comfort and companionship given by a wife".  That includes, as Toohey v Hollier[45] shows, far more than looking after the children and providing general household services.  That case makes it clear that, there is no reason in law to restrict recovery to particular categories of damage.  As the Court said:

[45] (1955) 92 C.L.R. 618; see also the judgment of Demack J. in Johnson v Nationwide Field Catering Pty Ltd [1992] 2 Qd.R. 494.

"Matters of sentiment or feeling were doubtless not regarded but that is because, speaking generally, special damages not made out except by some actual temporal loss, the deprivation of some material temporal advantage capable of estimation in money, not because such matters do not conform with some special description recognised by law as an incident of marriage for the loss of which a cause of action is given."[46]

[46]     At p. 625.

Compensation for the comfort, fellowship, assistance and services provided by a wife to her husband cannot include damages for grief, nor for loss of love itself; but it can include damages for the loss of those everyday actions which are the product of such love in a marriage.  These are the actions (services is too crass a word) by which a person comforts and renders life agreeable to a spouse in a multitude of ways, some tiny, some important.  Injury of a wife may damage or destroy her capacity to act in such ways.

Because the matter has not been free from controversy, I should add that in my judgment it is relevant in this context to take into account any diminution in quantity or quality of sexual intercourse[47].

[47]     See Luntz: Assessment of Damages, 3rd edition, pp. 454-5.

Mr. Talbot's evidence in relation to these matters was unchallenged.  As a result of Mrs. Talbot's treatment and dietary needs, family activities such as barbecues, picnics and visits to the beach have ceased.  So have social outings with their friends.  The quality of his wife's companionship has been degraded, particularly when she has been having treatment.  A body scan makes her tense, and after chemotherapy she is tired and irritable.  Chemotherapy lasts for several days.  Because of her illness he has rearranged his working times and extended the hours of his night work.  The net effect of this seems to be that he gets less sleep than previously, or less leisure time.  He has of course been obliged to participate in the care of the children and the housework, and has had to care physically for Mrs. Talbot.  Since his wife's operation, sexual intercourse has been practically non-existent. 

Taking into account the amounts already awarded to Mrs. Talbot, in my judgment a proper amount to allow for Mr. Talbot under this heading is $15,000.00.  I would apportion this, admittedly arbitrarily, as $14,000.00 up to the present time and $1,000.00 for the period remaining until death.  Subject to any submissions by counsel on the topic (I have to date received none) interest should be allowed on the amount of $14,000.00 from 20th December 1991 at 2%.

I make no award under this heading in respect of the period after Mrs. Talbot's death because in address Mr. Williams told me that the authorities are "very, very heavily against" doing so.  I have had no argument on the point; I have not looked at the authorities; and I say nothing about the law on the topic.  Since Mr. Williams expressly wished to preserve the point, I should say that if the law subsequently be held to be otherwise, I would have awarded a further $10,000.00 under this heading in respect of loss of consortium in the period after Mrs. Talbot's death.

In addition to the foregoing aspects of the claim for loss of consortium, Mr. Williams also urged that I should under this heading allow Mr. Talbot's loss of income incurred as a result of Mrs. Talbot's services being unavailable to the partnership business for the period from the time of her diagnosis until the time of her death.  He made no submission in respect of the period after death under this head, as Mr. Talbot will then be the sole proprietor of the business.  The defence resisted this claim, relying upon Behrens v Bertram Mills Circus Ltd[48].

[48] [1957] 2 Q.B. 1.

In Toohey v Hollier the High Court said:

"[T]ake the case of a tradesman's wife accustomed to assist in the conduct of her husband's business but disabled from doing so by a stranger's wrongful act.  It is impossible to resist the impression that in an action by the husband it would be regarded as a matter of course to award him damages in respect of consequential loss or expense incurred by him in the conduct of his business.  In Best v Samuel Fox & Co Ltd, Lord Reid said: 'I do not think that it is open to doubt that an impairment of a wife's capacity to render assistance to her husband was enough to found an action'."[49]

[49]     At p. 626.

That passage to my mind applies precisely to the circumstances of the present case.  The husband's loss is his half share of the wages which the partnership had to pay to engage an additional employee to replace the wife.  The employee had to be engaged because the wife's services could no longer be provided.  Those services had been provided by her as a wife, not as an employee, but it seems clear that if they had been provided in the latter capacity, Mr. Talbot could have recovered the cost of a replacement employee.  It is true that at the time the services were provided by Mrs. Talbot she was a partner of Mr. Talbot; but no authority has been cited to me to support the proposition that a claim which would otherwise lie for loss of consortium is defeated by the existence of a partnership relationship.  In my judgment it is perfectly plain in the present case that the marital relationship supplied at once the reason for the existence of the partnership and the reason for the work which Mrs. Talbot performed in the business.  Because of it, Mrs. Talbot assisted Mr. Talbot, and the loss which he has suffered in consequence of being deprived of that assistance is clearly reducible to monetary terms.

I see nothing in Behrens v Bertram Mills Circus Ltd to the contrary.  True it is that in that case Devlin J. stated (obiter) that the husband could not have recovered the cost of a replacement for his wife in his business.  However the reason for this was that "on the facts he would have sustained no loss"[50].  That is not the position in the present case. 

[50]     [1957] 2 Q.B. at p. 29.

Professor Luntz refers to the old case of Parkhill v Qualmer[51] as supporting recovery in such a situation as the present, and for what it is worth, I agree that it does so.  Mr. Williams cited upon the case; but I would be hesitant to rely solely on such an old case, particularly when the question seems to me to be almost one of fact rather than one of law.  Professor Luntz suggests in his book that the case "seems to have been rejected by implication in Foodlands Association Ltd v Mosscrop [1985] W.A.R. 215"[52], but as I read that case, the question simply was not raised.  There, the argument proceeded as a claim for economic loss on the basis of The Dredge 'Willemstad' [53].  Mr. Williams did mount an alternative argument on the basis of that case.  It is unnecessary for me to deal with it.  It was rejected by Demack J. in Locher v Turner, and, at least at trial level, faces formidable obstacles in the reasons of the Full Court in Harris v Grigg[54].

[51] (1887) 3 W.N. (N.S.W.) 131.

[52]     Luntz: op cit p. 452.

[53] (1976) 136 C.L.R. 529.

[54] [1988] 1 Qd.R. 514.

Conformably with the findings which I have made in relation to Mrs. Talbot's loss, Mr. Talbot's claim is assessed in the sum of $16,450.00 to date and $2,080.00 for the period up until Mrs. Talbot's death.  Interest is allowed on the former amount at 6% per annum from 20th December 1991.

Discounting for loss of a chance

To date I have assessed damages as though all of the Talbots' damage clearly flowed from Dr. Lusby's negligence.  In fact, that was not the position.  Mrs. Talbot might not have been diagnosed as having cancer until it was too late, even if she had been sent for an ultrasonic scan, or the aspiration needle had been sent for cytological examination, in August 1989.  There might have been a false negative result again.  Moreover even if the diagnosis had been made, she might have turned out to be incurable, even at that early stage.  It was common ground between the parties that the way I should take account of these possibilities is by discounting the damages to reflect that they are damages for loss of a chance.  In my judgment, this can be done by discounting the total damages otherwise assessed for each plaintiff by 15%.  I have already, in the course of assessing the specific heads of damage, discounted for other contingencies relevant to each head. 

Summary
           I assess Mrs. Talbot's damages as follows:
Pain and suffering and loss of amenities  $50,000.00
           Interest  $3,209.00
Loss of expectation of life  $7,500.00
           Interest  $535.00
Past economic loss  $16,450.00
           Interest  $3,469.00
Future economic loss: the period up to death  $2,080.00
Future economic loss: the lost years  $156,500.00
Griffith v Kerkemeyer: to date  $80,000.00
           Interest  $5,702.00
Griffith v Kerkemeyer: the period up to death  $5,865.00
Griffith v Kerkemeyer: the lost years  $78,500.00
Future costs  $17,500.00
Special damages  $28,833.60

Interest  $2,565.00

$458,708.60

Less: discount for chance (15%)  $68,806.29

$389,902.31

I assess Mr. Talbot's claim as follows:
Specific economic loss: to date  $16,450.00
           Interest   $3,517.00
Specific economic loss: the period to death  $2,080.00
Other loss of consortium  $15,000.00

Interest  $999.00

$38,046.00

Less: discount for chance (15%)  $5,706.90

$32,339.10

I shall hear counsel on questions of calculation.  Subject thereto I shall enter judgment in accordance with these reasons.