Taylor, Sheryl Gladys v Capital Territory Health Commission

[1983] FCA 402

IN THE FEDERAL COURT OF AUSTRALIA	)
1

AUSTRALIAN CAPITAL TERRITORY j ACT No. G.58 of 1983

REGISTRY DISTRICT 1

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1

DIVISION	GENERAL	1
BETWEEN:

SHERYL GLADYS TAYLOR Appellant

and

THE CAPITAL TERRITORY HEALTH

Respondent COMMISSION

CORAM: Northrop, McGregor and Fitzgerald JJ.

DATE: 4 November 1983

WHERE MADE : Canberra

ORDER

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THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order appealed against be set aside.

3. Judgment be entered In favour of the appellant for

damages to be assessed.-

4.	The matter be remitted to the Supreme Court of the
Austrslian Capital Territory for the assessmenr of

damages.

5. The respondent pay the appellant's costs of the appeal and of ihe Supreme Court prcceedings.

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I N THE FEDERAL COURT O F AUSTRALIA

1

AUSTRALIAN CAPITAL TERRITORY 1 ACT G . 5 8 N o . of 1983

R E G I S T R Y D I S T R I C T 1 1

GENERAL	D I V I S I O N	1
BETWEEN :

SHERYL GLADYS TAYLOR A p p e l l a n t

and

THE CAPITAL TERRITORY HEALTH

COMMISSION R e s p o n d e n t

CORAM: N o r t h r o p , M c G r e g o r and F i t z g e r a l d JJ.

- DATE : 4 N o v e m b e r 1983

WHERE:	C a n b e r r a
NORTHROP J .	EX TEMPORE REASONS FOR JUDGMENT

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I agree w i t h the orders proposed by M r . J u s t i c e

M c G r e g o r and Mr. Jus t i ce F i t z g e r a l d , and agree w i t h the

opinions expressed by each of t h e m and have noth ing f u r t h e r

to add.

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IN' THE	FEDERAL	COURT	OF	AUSTRALIA	)
1

AUSTRALIAN	CAPITAL	TERRITORY	j
) No. ACT G58 of 1983

DISTRICT	REGISTRY	)
1
GENERAL	D I V I S I O N	j

ON APPEAL FROiT THE SUPREME COURT OF THE

AUSTRALIAN	CAPITAZ	TERRITORY
BETWEEN:

SHERYL GLADYS TAYLOR

Appellant

AND:

CAPITAL TERRITORY HEALTR

COMMISSION

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Coram: Northrop, McGregor and F i t zge ra ld JJ.

4 November 1983

McGregor J. I agree with the s ta tement of material facts

and decision proposed by my learned brother Fi tzgerald.

For myself I would wish t o add t h a t t h e r e i s

uncontradicted evidence i n suppor t o f t he p l a in t i f f ' s c l a im

from D r . Jo l ly . H e i s an experienced General P r a c t i t i o n e r

who has t rea ted pa t ien ts wi th P e n i c i l l i n over t h e l a s t twenty

years . Further , he has been the appel lant ' s medical adviser ,

i f n o t t h e only medical adviser, since November 1977 . I n

2.

particular, he has treated her for asthma during that perlod and also with serum sickness. He visited her apparently in hospital in May of 1979 belng the period out of which this action arises. He provided a written report and gave oral

and noted an anaphylactic reaction by her in response to a

desensitizing injectlon ordered by another practitioner.

evidence. He saw her on 24 May 1979, i.e. after discharge

but before readmission to the Noden Valley Hospital. She

was then suffering from angloneurotic oedema, a condition,

according to his evidence which usually occurs in response

to an allergy of some kind. He diagnosed her as suffering

from penicillin anaphylaxis and arranged her urgent return

to the hospital. There does not seem to have been any challenge

to this evidence of diagnosis; and to the extent that it was

questioned in cross examination he adhered quite firmly and

unequivocally to his diagnos-is. In the circumstances of a

contest between experts, in the way the learned trial judge

considered this matter, it seems to me that Dr. Jolly's

diagnosis is entitled to great weight; particularly as

Professor Shaw had not seen the appellant but rather relied

upon a reading of notes from wbich he drew conclusions,

some of which were equivocal. Dr. Jolly's evidence

referred to various signs and symptoms which he observed

on the appellant on 24 May 1977. These were submitted

amongst others to Professor Shaw and all, save one, accepted

by him as manifestations of ox reactions to the administration

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of Amoxil.

3 .

In the circumstances, I c o n s i d e r t h a t if t h e

evidence of D r . Jo l ly had received due recogni t ion hls Honour

would not have made u l t imate f ind ing .

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I certify that this and the .S . preceding

pages are a t ruc rr- of the reasons for

judgment herem of the Court

EL2	hC6+9-
Associate

Dated 4 I I 1 S 3

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IN THE FEDB.AL COURT OF AUSTRALIA 1

AUSTRALIBM CAPITAL TERRITORY REGISTRY	)	A.C.T. G58 of 1983
GENERAL DIVISION	)

BETWEEN :

SHERYL GLADYS TAYLOR

Appellant

AND :

THE CAPITAL TERRITORY HEALTH

COMMISSION

Respondent

CORAM: Northrop, McGregor & Fitzgerald JJ.

U: 4 November 1983

EXTEMPORE REF.SONS FOR JUDGMENT

Fltzserald J.: This is an appeal from a judgment of a single

judge of the Supreme Court of the Australian Capital Territory. l

The trial judge, Blackburn C.J., dismissed the plaintiff's claim

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for damages for negligence and breach of contract. The plaintiff

has appealed asking that judgment be entered in her favour f o r

damages to be assessed and that the action be remitted to the

Supreme Court for the assessment of damages.

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r 2.

The material facts are substantially set out at length

in the judqmcnt appealed from and no more than brlef reference to

them is necessary. In essence the present dispute related to the

approach adopted by the trial judge in resolving a conflict

between two expert witnesses. His Honour's task was made

unnecessarily difficult because the attention of vital witnesses

was not always directed to critical issues.

The plaintiff 1s a young married woman whose early

childhood had been prone to attacks of asthma. The defendant

controls the Woden Valley Hospital. The plaintiff was admitted

to the hospital on 16 May 1979 sufiering from an attack of asthma

and	manifesting	signs	of	upper	respiratory	tract	infection	and	;
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bronchitis. She b7as placed under the care of Dr Stepanas, a ;

specialist in Ehdocrinology, who was a member of the medical i

staff of the	Hospital.	The plaintiff	alleges	that	Dr Stepanas	1
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treated her incompetently and that in consequence she became	ill.	f
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The trial judge found that the defendant initially breached its	c ::
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duty	to	the plaintiff but	tKat	the treatment accorded the	-<
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plaintiff by Dr Stepanas on her discharge from hospital (which was the major area of complaint) was competent and that,	c	:
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ir, any	J .
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event, the plaintiff's relevant illness pas not caused by the I.!

treatment prescribed by Dr Stepanas.

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The plaintiff is allergic to penicillin and at the tine

of her admission to the hospital she was wearing a bracelet which

revealed that fact. Further, the plaintiff disclosed her allergy L

to the nursing staff and to two of the doctors junior to Dr

Stepanas. The allergy was noted on her medizal records in the

3.

hospital. However,-Dr Stepanas did not notice the notation and prescribed Amosycillin, or "Amoxil" as it has been described,

which is a semi-synthetic form of penicillin. It is not in

dispute that the administration of Amoxil to the plaintiff at

that point wss a breach of the defendant's duty	of care to her.
The primary judge said:

" I sympathise with the plaintiff's

understandable indignation at having been

treated with amoxil from 17 May to 21 May when

the indications against such treatment were so

-obvious. 'I

However, no judgment was given against the defendant in respect

of that treatment. t

In the period during which the plaintiff was in hospital

she showed some relatively minor indications of what might have	;
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been an allergic reaction. It is a reasonable interpretation of - 4

the trial judge's findings that the Amoxil did not in fact cause	b
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the plaintiff	any	material	disability	whilst	she	was	.I
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hospitalized. Further, his Honour provided an explanation for	r:
that. He said:

"The plaintiff received various other

medications while in hospital, these included

hydrocortisone and becotide which were

administered for the purpose of relieving the

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asthma. These two drugs would have the effect

of delaying or attenuating the severity of any

allergic reaction to amoxil which might

occur. 'I

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4.

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It is against that background that the conduct of Dr Stepanas

which is complained of by the plaintiff must be assessed. Again,

it is convenient to quote from the findings of the primary Judge.

He said:

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"Dr Stepanas said that until he spoke to the

plaintiff on the day of discharge he had not

been aware of the fact that the plaintiff was

allergic to penicillin as he had not himself

seen the stickers on the hospital notes, nor

had the fact been reported to him by the

medical registrar or the resident medical

6fficer junior to him. He told her that she

had been treated with a drug called amoxil,

-and the plaintiff then asked whether amoxil

was a penicillin to which the doctor replied

'No, it is not a penicillin but it is a

similar drug to penicillin'. The plaintiff

then said to him, 'I a!n allergic to penicillin

and therefore am I not allergic to amoxil?'

The doctor said that this 'set him aback'

because it was new information to him. He

realized she was anxious on the point and began to ask her whether she had had any signs of allergy or allergic reaction to the amoxil;

in particular he inquired whether she had had

gastro-intestinal any upsets, nausea,

vomiting, diaorrhoea or skin rash or itching

on the trunk or body. According to the doctor

she denied all this, but did say she had

noticed some falling out of hair, that she

felt that her scalp was prickly. The doctor

said that he then examined her, found no rash,

and he did not recognize falling hair or

prickliness of the scalp as symptoms of

penicillln or amoxil allergy. Accordlng to

him he was satisfied that che patient was not

allergic to amoxll. He also examined the

nurses' reports and the date of administering

-- of the amoxil, which was 17 May. He said that

he had seen her on 19 Mayand that she had not

mentioned any complalnts to him chen. He said

that he was also impressed by the fact that

the amoxil had apparently produced an

improvement in her bronchitis and was

therefore doing the job it was supposed to do

as an antibiotic. Fe explained that it had

'been adminlstered to her as an antibiotic

designed to kill the infection sJhlch she

apparently had on admission, i.e. the t

bronchltis. it was important in an asthma

sufferer who also had bronchltis, to treat the

bronchitis.

5.

Dr Stepanas wcnt on to say that he then asked

the plaintiff about the sort of symptoms she

had had with the previous penicillin allergy,

and the plaintiff described a swelling of the

face and throat which had occurred about

twenty years before. He said that he was

satisfied that that could constitute, but need

not necessarily be incontrovertable evidence

of penicillin allergy. The doctor then

explained why he decided to prescribe amoxil as a continuing medication for the plaintiff

after her discharge from hospital. The

decision ~7as made after considering the

evidence that the plaintiff had	an allergy to
penicillin (of which, according	to him, there

v7as no present evidence) and the past evidence

was 'of a distant nature and not very clear'.

Against this he balanced the benefit that the

amoxil had apparently conferred on the

plaintiff. namely her cough. had improved. her

fever bad disappeared and the lung function

tests were improving. He acknowledged che

plaintiff's anxiety about taking the amosil

but reassured her that there ~7as no evidence

that she was having any reaction to penicillin

or amoxil. He considered there was nothing to

suggest that the continued use of the amoxil

would produce	an allergic reaction within four
days of using	amoxil in a high dose."

The plaintiff left the hospital and took the kmoxil

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tablets and other medication, as advised. on the next three days,

2 2 , 23 and 24 May 1979. She became ill. It does not really seem

to be in dispute that she suffered a severe allergic reaction,

although it c7as very much in contest whether the allergic

- - reaction was caused by the Anloxil. On the afternoon of 26 May

she went to her general practitioner and was taken by him to hospital, whzre she stayed for one night. She was then again discharged to return home. It does not appear from the findings

of the trial Judge whether the Alnoxil was discontinued whilst she

was in hospital on that occasion but it seems clear that that was

the case. It is unnecessary to detzil the plaintiff's symptoms

further because damages are not presently in issue.

6 .

The plaintiff and the defendant each called an

independent medical expert very of high repute and

qualifications, neither of whom had examined the plaintiff at any

time. In the trial Judge's words, the plaintiff's expert

expressed the clear and firm opinion that in the circumstances of

the plaintiff's discharge on 21 May, the continued administration

of Amoxil was, on the part of the doctor who prescribed it, Dr

Stepanas, a failure to use ordinary skill. I accept that that

was an appropriate, if somewhat abbreviated statement of the

relevant test: see Whitehouse v. Jordan (1981) 1 A11.E.R. 267,

(H.L. 1 . The defendant's expert, when asked whether the

continued use of Amoxil was competent medical practice, replied:

"I think it is competent although it would not

necessarily have been what I would have done.

... given that she had been exposed to the

drug for four days at that time and had not

had an acute reaction. It makes the

likelihood of an acute reaction almost zero,

and as long as some -appropriate warning is

given, yes, it is then competent."

The primary judge said:

"I am faced with the difficult task of

determining whether Dr Stepanas was

professionally negligent; in the face of

conflicting opinlons from two experts of such

high repute. The declsion to prescribe the

amoxil was made by Dr Stepanas after

consideration of the plaintiff's medical

condition during the previous five days in

hospital, and of the possible benefits and the

possible risks. In the light of this, and of

the opinion of Professor Shaw that che

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decision was a competent one, I am not able to

accept Dr Hodge's opinlon that it was a

failure to act with ordillary skill. I hold

that the prescription of amoxil by Dr Stepanas

was not a breach of his duty to the

plaintiff . "

I am unable to agree with that view and I have concluded

that it was not, on the uncontroverted evidence and the findings,

a view which was open to his Honour. I am, of course, conscious

of the restricted role which is appropriate to be played by an

appellate court in such circumstances (see Warren v. Coombes

(1979) 142 C.L.R. 531) and that not only credibility but the

quality of witnesses is primarily a matter for the trial judge and not the appellate court: see e.g. Whitehouse v. Jordan,

supra, at p.276 per Lord Edmund Davies. Nonetheless where as

here the process of reasoning of the expert upon whom the primary

judge relied is exposed and can be seen to be flawed. The appeal

court can and should give effect to its own conclusion.

It is by no means clear to me that the defendant's -

expert did express the opinion attributed to him that the

decision of Dr Stepanas was a competent one. Certainly he gave no evidence that it was the appropriate treatment. At most, he

gave it qualified approval. It 67as competent "as long as some

-.	appropriate warning" was given. There is no finding that any
such warning was given. There is some evidence that Dr Stepanas
advised the plaintiff to consult her general practitioner if she
was affected by the imoxil. His Honour found that Dr Stepanas
reassured the plaintiff, telling her that there was no evldence
that she was having any reaction to penicillin or Amoxil.

8.

c

However, that is by no means an end to the matter. It

is of assistance to go back and reiterate certain parts of his

Honour’s judgment. He said:

I

(a) “It is not disputed that amoxil is

contra-indlcated by an allergy to

penicillin. ”

(b) “The plaintiff received various other

medications while in hospital; these

included hydrocortisone and becotide...

!L’hese two drugs r.7ould have the effect of

delaying or attenuating the severity cf

any allergic reaction to amoxil which

- might occur. ”

(c) “Professor Shaw said that for the

purposes of thls case there are two kinds

of reactions to amoxil which mlght have

occurred in the plaintiff. One was the

acute o r anaphylactic reaction which

would be expected to occur within the

first few hours and certamly within the

first 12 hours after administration of

the drug. The other is the delayed

reaction, sometimes called serum

sickness, which characteristically occurs

somewhere around fourteen days after

exposure to a drug and it may occur weeks

or months later; ... He agreed that,

with the plaintiff’s assumed history of

penicillin allergy-, it was unwlse to

prescribe amoxil in the first place. The

danger which made such a decision unwise

was the danger that she t70Uld have, as a

dramatic event then and there, an

anaphylactic reaction, or alternatively

that she might have a subsequent delayed

reaction which could occur at a later

time. ”

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Professor Shaw gave evidence, to which we were directed,

that: the symptoms exhibited by the plaintiff on her readmission

to hospital were indicative of an anaphylactic reaction and

further that a delayed reaction probably would, but might not,

have occurred earlier rather than later in a person wha had

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earlier been adversely affected by penicillin. However, he sald

that it might not so occur and certainly on a fair reading, his

evidence does not deny the real possibility that the reaction

which led to her readmission to hospital was occasioned by the

Amoxil and that this was	a foreseeable significant risk when she
was first discharged.

In my opinion, it was not possible consistently wir;h

what wag said by his Honour, and w e n taking into account in

favour of the defendant the additional evidence given by

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Frofessor Shaw, to rely upon any absence of symptoms while the

plaintiff c7as in hospital or that the symptoms were only minor,

as an indication that the Anoxil would not have, or had not had,

an adverse effect upon her. Further, there was not, so far as I

can see, any warrant whatsoever for Dr Stepanas to reject or

discount the clear warning that the plaintiff was allergic to the plaintiff's allergy and its nature and history, and in part at least as a result of that doubt, uncertainty as to whether, if

penicillin on the basis of a lack of clarity in her description

of her experience some twenty years earlier when she was a child.

the Amoxil 17as dangerous to the plaintiff, its adverse effects

-. would already have been observable. Dr Stepanas himself, In

parts of his evidence, acknowledged an awareness that, at the

time when he discharged the plaintiff on 2 1 May, there was an

appreciable risk that she would in fact suffer a reaction froin

the Amoxil, although in general the tenor of his evidence was

that he did not expect a reaction.

10.

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To these considerations must be added that it seems that

there were “a whole host of other antibiotics“, besides Amoxil

which could have been used and would have been equally effective

I

to treat the plaintlff. Apart from the fact that Amoxil had been

successfully used to treat the plaintiff‘s bronchitis, there was

no suggestion that there was any basis for preferring it and no

suggestion that any of the other antibiotics might not prove

equally efficacious.

In my opinion, as the evidence stood, neither the

defendant’s expert nor the primary judge could have arrived at a

conclusion other than that, having regard to hls own description

of the considerations which he took into account, Dr Stepanas

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failed in the circumstances to exercise due professional skill

when he prescribed Amoxil for the continued treatment of the

plaintiff upon her discharge from hospital.

His Honour also relied upon the opinion of Professor

Shaw for his conclusion that,-in any event, the plaintiff’s

disability which occasioned her readmission t o hospital on 24 May

was not caused by the Amoxil. Once again, in my opinion, it is

possible to perceive the error in the process of reasoning Khich

led to that conclusion. The plaintiff’s expert, Dr Hodge, was of

the opinion, as his Honour found, that it was probable that the i

plaintiff’s disability was caused by the Amoxil. His Honour

said, however -

11.

" Professor- Shaw, on the other hand, said that

the plaintiff's reaction which caused her

admission to hospital on 24 May was possibly a

result of her prior allergy to penicillin, but

just as likely due to allergy to a wide range

of other things, e.g. soaps or cosmetics or

all the other drugs that she had taken. He

said :

'All of these can give rise to the same

sorts of reactions and given that the

whole episode did not start within the

first couple of days, it makes those

other possibilities lust as likely."'

Professor Shaw was unable to specify what was lihe cause

of the plaintiff's reaction on 24 May if it was not the course of

Amoxil ; he simply considered that such symptoms that she

exhibited could possibly have been produced by a number of the

drugs and items with which she was in contact. His Honour said,

speaking of Professor Shaw -

"When asked whether there was any way of

testing those other possibilities, he replied:

'I think the test vas done for you in

that she did not get the response when

first challenged with the amoxycillin.'"

I am quite unable to follow that process of reasoning.

Firstly, and in my opinion sufficiently for present purposes,

Professor Shaw's own evidence in other respects clearly

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establishes that an allergic reaction to Amoxil need not be

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immediate but can be delayed. Further, whereas the possibility	i
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that one or other of the other drugs with which the plaintiff was

treated or the items with which she had contact might have

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produced an allergic reaction, remained in the realm of

speculation. It was an established fact that:

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(a) the plaintiff t7as allergic to penicillin and thus at risk from treatment with

I Amoxil;

(b) the plaintiff was treated with Amoxil;

(c) the plaintiff suffered a reaction;

(d) the Amoxil was stopped;

(e)	the reaction was diminished by a limited
but substantial dose of hydrocortisone

and did not reoccur.

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Both logic and the authorities require the conclusion in

such circumstances including the absence of any suggestion that

the plaintiff was in fact allergic to any of the other items,

that it has been established on a balance of probabilities that

the reaction was caused by the Amoxil: cf. Tubemakers of

Australia Limited v. Fernandez C19763 50 A.L.J.R. 720, Luxton v.

Vines (1952) 88 C.L.R.	352, 358, HOllOG7ap v. McFeeters (1956) 94
C.L.R. 470. 480.

In my opinion, therefore, the learned judge erred in

both conclusions at which he arrived. The appeal should be

allowed and judgment entered in favour of the plaintiff, the

damages to be assessed. The matter should be remitted	to the
Supreme Court for the assessment of damages. The defendant

-. should pay the plaintiff’s tar costs here and below.

I also agree with the additional observations made by my

learned brother McGregor. 1 certify t5at this and the I I preced!ng

pages are a true copy of the reasons for

judgment heran of His Honour

Mr. Justice Fltzgerald

L --pd Associate

Dated 17 &.de/, /?g3 &

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