Turner v Locher and Locher

[1995] QCA 106

IN THE COURT OF APPEAL

[1995] QCA 106

SUPREME COURT OF QUEENSLAND

Appeal No. 14 of 1995.

Brisbane

[Locher v. Turner]

BETWEEN:

MAUREEN JOAN LOCHER

(First Plaintiff) First Respondent

- and -

PETER WALTER LOCHER

(Second Plaintiff) Second Respondent

AND:

KAREN TURNER

(Defendant) Appellant

__________________________________________________________________

___

Pincus J.A.
McPherson J.A.

Byrne J.

__________________________________________________________________

___

Judgment delivered 21/04/1995

Joint reasons for judgment of Pincus J.A. and Byrne J.; separate concurring reasons of
McPherson J.A.
__________________________________________________________________

____

APPEAL DISMISSED WITH COSTS
__________________________________________________________________

____

CATCHWORDS:	MEDICAL NEGLIGENCE - contributory negligence - whether failure to investigate condition of colon until more than 12 months after initial complaint could be regarded as cause of cancer not being diagnosed until too late - reliability of doctor's evidence by "filling in" gaps in and omissions from written notes - duty of doctor to follow up previous problems - patient's corresponding duty.
Rogers v. Whitaker (1992) 175 C.L.R. 479.
Counsel:	Mr S C Williams Q.C. for the appellant. Mr S G Jones Q.C. for the respondent.
Solicitors:	Flower and Hart for the appellant. Macrossan and Amiet for the respondent.
Hearing date:	31 March 1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 14 of 1995.

Brisbane

Before Pincus J.A.
McPherson J.A.
Byrne J.

[Locher v. Turner]

BETWEEN:

MAUREEN JOAN LOCHER

(First Plaintiff) First Respondent

- and -

PETER WALTER LOCHER

(Second Plaintiff) Second Respondent

AND:

KAREN TURNER

(Defendant) Appellant

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND BYRNE J.

Judgment delivered 21/04/1995

The respondents, Mr and Mrs Locher, were awarded damages for professional

negligence in the Supreme Court, in an action against the appellant doctor. The

primary judge held that negligence had been proved, but reduced the damages by 20%

on account of the first respondent's lack of care for her own safety. The appeal

challenges the finding of negligence against the appellant and also the apportionment of

responsibility for the damage between the appellant and the first respondent. By a

notice under O. 70 r 13 the second respondent asserted that errors were made in

assessing his damages, but that is not pursued; the second respondent is the first

respondent's husband, and his claim was for loss of consortium.

The first respondent (Mrs Locher) was diagnosed as having cancer of the colon

in early 1994 and has since been operated on twice for that complaint. Her condition at

the date of the trial, in December 1994, was thought to be perilous and the expectation

then was that she would die of the cancer fairly soon. Mrs Locher's case was that the

appellant, who had been attending to her as a general practitioner for some years prior

to a diagnosis of cancer being made, had neglected the opportunity to form a timely

medical opinion that there were signs and symptoms consistent with cancer of the

colon. It was alleged in effect that the indications were such as to call for further

investigation of Mrs Locher's condition with a view to determining whether she had a

disease of the colon and that by the time proper investigations were done it was, it

appears, too late to save Mrs Locher.

The primary judge had the advantage of opinion evidence from doctors as to the

proper practice to be followed when patients come, as did Mrs Locher, complaining of

bleeding from the anus and from other complaints which could be referable to trouble in

the colon. But the resolution of the dispute depended principally upon his Honour's view

of the consultations which Mrs Locher had with the appellant in 1992 and, perhaps, in

May 1993. The appellant's notes of those consultations were in evidence, as were

notes made by a Dr Bartrum, who was at relevant times practising in association with

the appellant, and who saw Mrs Locher when the appellant was for one reason or

another not available. The appellant's notes are not very full and it was necessary for

her to attempt to add to them matters from her recollection - either specific recollections

she claimed to have of conversations with or examination of Mrs Locher, or more

general recollection, based on what was said to be her usual course of practice.

Apart from the evidence of the appellant and that of Dr Bartrum about relevant

consultations, the primary judge had before him what Mrs Locher recalled of those

matters. His Honour remarked of the evidence of Mrs Locher and the appellant:

"Both had reason to search the recesses of their memory and both had reason to be guided in that search by what they now think they would have done. There is no suggestion that either woman is motivated to give false evidence."

After stating his impressions of the personalities of the two women, his Honour went on:

"The recollections that they now have are shaped by these matters, so that, in Mrs Locher's case, the things which were on her mind she is now convinced she mentioned to Dr Turner, while Dr Turner has found in her usual practise the gaps her notes leave. The difficulties that this presents in the evidence are great enough in Mrs Locher's case. In respect of Dr Turner, the difficulties are even greater."

His Honour illustrated the latter proposition by referring to what turns out to be an

important conversation which the appellant said she had with Mrs Locher on 7 May

1993 - a piece of evidence about which his Honour apparently had reservations. That

conversation is discussed below.

As we understand his Honour's reasons, he had no great confidence in either the

recollection of the appellant, nor that of Mrs Locher, with respect to events at the

material consultations. In these circumstances, the contemporaneous notes of the

consultations become particularly important. The notes are cryptic, to a degree;

versions which are to some extent expanded by reference to the evidence of the maker

of the note and which relate to events which appear to be of importance are as follows:

25 May 1992 (appellant)	Bleeding piles after second pregnancy with
opening bowels. Healthy vagina. Proctosedyl ointment
prescribed. Anoscopy - inflamed internal
haemorrhoids.
16 September 1992 (appellant)	Ultrasound and midstream urine test. No
abnormality detected. Provisional diagnosis
irritable bowel. Patient will increase fibre
intake before colonoscopy. Lengthy
consultation regarding stresses. (emphasis
added)
8 January 1993 (Dr Bartrum)	Problem with piles and low abdominal pain.
Bleeding loose motions. Note above.
Vomiting zero. Slight tenderness on right
side of abdomen. No masses. Rectal
examination no masses. Presumptive
diagnosis - query colitis. Plan: return to see
Dr Turner. Query sigmoidoscopy or
colonoscopy. Prescribe Anusol
suppositories. (emphasis added)
17 May 1993 (appellant)	Wry neck. Trouble started Friday.
Stiff...immobile 2 days off, collar.
1 December 1993 (Dr Bartrum)	Ongoing symptoms. Bleeding per rectum
recurrently and loose bowel motions. No
constipation. On examination abdominal pain
and discomfort. Weight steady.
Sigmoidoscopy.
16 February 1994	Note results of colonoscopy biopsy.
21 March 1994	Carcinoma of sigmoid: with metastases.

It should be added that the appellant's evidence concerning the first of these

notes, that of 25 May 1992, interpreted it as recording a complaint of some bleeding

from time to time ever since Mrs Locher had her second child, in 1987. Taking account

of this addition, there appears on the face of it to be, up to January 1993, a substantial

history of bleeding from the rectum, a provisional diagnosis of "irritable bowel" in

September 1992, and symptoms such as to suggest the desirability of colonoscopy in

that month and also in January 1993.

Yet no action was taken to investigate Mrs Locher's colon until December 1993.

There was evidence in the notes suggesting that the symptoms recorded were such as

to make it prudent to investigate the condition of the colon well before that date, and

evidence on which his Honour could properly conclude that this delay was a cause of

Mrs Locher's cancer not having been diagnosed until it was too late to save her.

The appellant's counsel argued that the primary judge accepted the appellant's

evidence in relation to the consultations she had with Mrs Locher. His Honour rejected

the evidence of Mrs Locher in respect of two consultations: those of May 1992 and

September 1992, this does not justify the inference that his Honour accepted the

appellant in all or most respects. The passage quoted above, in which his Honour

compares the reliability of Mrs Locher with that of the appellant, is hardly consistent with

that view. This Court cannot decide the appeal on the basis that the appellant's

evidence "filling in" gaps in and omissions from her written notes should be treated as reliable; to do so would go well beyond the proper function of an appellate court dealing

with factual findings: Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167,

Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472. The

appellant's task is not to establish, going on the record and ignoring the trial judge's

findings, that she should in no way be held responsible for the late diagnosis of Mrs

Locher's cancer, but rather to show that the trial judge's conclusions are incorrect. The

judge's principal findings were in summary as follows, in the order in which they appear

in his Honour's reasons:

Mrs Locher was reticent about details of her physical condition, a matter

which the appellant should have realised.

The appellant examined Mrs Locher's piles by anoscopy on 25 May 1992

and concluded that the piles were the cause of Mrs Locher's bleeding

from the rectum; but what was seen on examination did not justify her

conclusion that the piles were the cause of the bleeding.

When the appellant saw Mrs Locher on 17 May 1993 - about a year later -

she was apparently still relying on her examination in May 1992 in "her

mental response to Dr Bartram's note made in January 1993" (It will be

recalled that this note referred to bleeding and loose motions and to

abdominal tenderness, and suggested a sigmoidoscopy or colonoscopy).

The appellant was puzzled about the cause of Mrs Locher's symptoms in

September 1992 (when there was a provisional diagnosis of "irritable

bowel"), but did not question Mrs Locher about those symptoms when she saw her, twice, in November 1992. The appellant should have specifically

raised with her patient the question of bleeding from the rectum, although

Mrs Locher did not mention bleeding on either of her November visits.

The judge, it appears, accepted evidence of a Dr Robertson that there

should have been inquiries about the patient's bowel and the question of

a sigmoidoscopy and/or colonoscopy.

The diagnosis of "irritable bowel" can only be made after other possible

diagnoses have been excluded; the appellant said she made that

diagnosis provisionally only, but it was left unresolved in the notes. One

would have expected the problem to be returned to in the visits made in

November. Until the cancer spread to the liver, 6 to 8 months before

surgery, or spread beyond the local bounds of the bowel and the initial

lymph gland system, there was potential for cure.

The appellant identified inflamed internal haemorrhoids in May 1992 as a

possible bleeding site, but there was no unequivocal diagnosis; the

appellant should have reviewed her provisional diagnosis of September

1992 when she was considering colonoscopy, and that failure "deprived

her of the opportunity of recommending further tests which should have

led to the discovery of the tumour". Although in November 1992 Mrs

Locher was still suffering from bleeding from the rectum, she did not

report it, but the appellant should have raised the issue with her. If the

provisional diagnosis had been reviewed there was "a strong probability that surgery would have occurred twelve months before it did". The

appellant being "well aware of the limited range of symptoms that can

lead to the early detection of bowel cancer" should carefully have

questioned the patient about the nature of the bleeding and reviewed her

diagnosis and symptoms. However, Mrs Locher was also partly to blame

because she did not inform the doctor of the nature and extent of her

rectal bleeding, so must bear 20% of the blame.

These findings were challenged on behalf of the appellant, on a number of

bases. One was that the judge was not entitled to make the finding he did about Mrs

Locher's inclination to reticence; that finding is presumably based to a large extent on

the judge's impression of Mrs Locher as a witness and can hardly be upset here. Then

various submissions were put on the assumption, which we think to be unjustified, that

the judge has generally or perhaps universally accepted the appellant's evidence in

relation to matters not mentioned in her notes. It does not appear to be necessary to

deal with these two topics in detail and we will turn to the two more substantial

arguments, which are that the weight of medical evidence was to the effect that the

appellant's management of Mrs Locher's problem was adequate and that the judge

placed too much emphasis upon the unconfirmed provisional diagnosis of "irritable

bowel".

Rogers v. Whitaker (1992) 175 C.L.R. 479 constitutes authority for the view that

the standard of reasonable care and skill required of a medical practitioner is that of

"the ordinary skilled person exercising and professing to have that special skill..." (483).

It was held there that the standard "is not determined solely or even primarily by
reference to the practice followed or supported by a responsible body of opinion in the

relevant profession..." (487). Obviously, evidence of the ordinary practice of doctors

must be of importance in a case of this sort, but eliciting evidence of that practice can

be beset with problems. One is that when a medical witness is asked about his or her

reaction to a particular situation, it is necessary, to make the answer useful, that the

situation be precisely defined.

Here, that was hardly possible, since neither the evidence of Mrs Locher nor that

of the appellant as to matters not recorded in the notes could necessarily be taken to be

correct. A passage of evidence from Dr Powe, which includes evidence on which the

appellant relies is as follows:

"If there were inflamed haemorrhoids, it is all consistent, isn't it?-- If there were inflamed haemorrhoids but, again, you haven't demonstrated the bleeding, so, again, it would concern me that I couldn't demonstrate the bleeding in a person who has come specifically to talk about bleeding piles.

Doctor, one confirmation that it was bleeding piles, one confirmation of a diagnosis of bleeding piles as correct would be the cessation of bleeding with appropriate treatment such as Proctosedyl; isn't that diagnostic in itself?-- Not necessarily. But, I mean, you know, in this particular case we are talking about an inflamed pile and if you demonstrated that it shrunk and it looks less ominous than it did, then I think you could possibly say to yourself, 'Well, this is the cause and we will just warn the patient and let things go.'

In that context, doctor, it is relevant that the age of the patient was approximately 30 and cancer of the bowel would be a very rare condition at that age in a person with no predisposing history; is that right?-- That's right. It is very hard to comment."

Carefully read, this does not appear to assist the appellant's case, but it illustrates the

point that one should not generalise too much about what should be done to investigate

bleeding which is possibly attributable to piles. Dr Powe was uneasy with the concept

that bleeding from the anus should be taken to originate in piles simply because that is thought to be a possible cause of the bleeding; but he was prepared to concede that if

piles appeared, on inspection, to have improved after treatment, then one might

"possibly...just warn the patient and let things go". In assessing this answer, the judge

was entitled to note that, on any view of the appellant's evidence, it was clear that she

had a complaint from Mrs Locher of bleeding from the rectum in May 1992 and that a

year later she had before her Dr Bartrum's note of further bleeding, together with loose

motions and pain in the lower abdomen. None of this, on the appellant's version of

events, prompted further investigation. The appellant's evidence suggested that she did

not even trouble to read Dr Bartrum's note until the patient was leaving, when she

stopped her:

"She didn't come back to sit down. I actually gestured to the couch because I said that I would have to look at her tummy but - it was quite hilarious, actually, because she - there she was with her neck to the right and I'm gesturing to the couch to get up and have a look at her tummy and she says, 'Oh no, it was just my piles acting up. I'm fine.' I said, 'You need a sigmoidoscopy.' I remember clearly, because if you go over the notes colonscopic examination is by far the best examination to do with her past history but that's what I said to her. I said, 'You need a sigmoidoscopy.', and she said, 'It was my piles acting up. It is fine.' "

On the appellant's version of events, she did not (as the argument addressed to us

suggested would have been proper practice) proceed on the basis that the patient's

failure to complain of further bleeding in May 1993 was a reason for not acting on her

complaints in January about her bowel. The evidence was that the appellant took the

view that "colonscopic examination is by far the best examination to do with her past

history" and that she told the patient that she needed a sigmoidoscopy. The appellant's

further evidence was to the effect that she did not press this because "As far as I knew,

it was all fine" - the expression "all fine" being a reference to what the patient had said,

not to the results of any examination.

One does not know to what extent the judge accepted this evidence, but he was

surely entitled to be puzzled by it. The written record showed that investigation of the

colon was thought necessary; but this was said not to have been pursued because of

the fact that the patient had diagnosed her own trouble as being "just [her] piles acting

up".

Then the appellant relies, in this connection, on some evidence given by Dr

Larkin, a specialist in colorectal surgery with many years experience. It is unnecessary

to set out the whole of the passage of Dr Larkin's evidence which is cited; the most

pertinent part is as follows:

"Doctor, a patient is provided with a diagnosis by you?-- Yes.

Of haemorrhoids, bleeding haemorrhoids?-- Yes.

And bleeding and so on and is sent away with instructions to return if there is any problems?-- Correct.

And doesn't return and makes no further complaint?-- Yes.

Are you entitled to assume at that point that that treatment has been appropriate and relieved the position?-- I would say, yes, that would be an appropriate reaction of the doctor."

What was put to the doctor to elicit his answers is subject to two criticisms. The

first is that it omits much of what, even on the appellant's version of events, had to be

taken into account to determine whether further investigation was necessary or whether,

on the other hand, one could assume "that treatment has been appropriate and relieved

the position". The second is that an assumption that the trouble had gone was not the

basis on which the appellant formed her conclusion. The appellant's view, when she

saw the note of January 1993, was that investigation of the colon was necessary. That did not occur because the patient had concluded the January trouble had been piles. It

is also material to note that Dr Larkin, who appears to have been, of the medical

witnesses, the one with by far the most extensive experience of the relevant problem,

gave evidence which was sceptical of the correctness of the appellant's approach. In

his written report Dr Larkin concluded in effect that too long a period of time elapsed

"from the onset of symptoms to the diagnosis being made because of the lack of

institution of reasonable and proper follow up by specialist opinion and investigation".

In his oral evidence Dr Larkin explained that bowel cancers begin as polyps which

bleed intermittently; when asked about bleeding from the rectum the doctor said in

effect that one must make sure that there is not a lesion above the anus causing the

bleeding.

The third medical witness relied on by the appellant in this connection is

Dr D Robertson, an experienced general practitioner. His evidence is by no means

unequivocally supportive of the treatment of Mrs Locher. When he was asked whether

he referred patients for colonoscopy at an early stage in investigation of bleeding piles

his answer was, in part:

"If you are certain that the piles are the cause of the bleeding which you have ascertained with your digital examination and your proctoscopic examination, then, no, I don't refer them..."

Here, there was no basis on which the cause of the bleeding could have been

confidently ascribed to piles. Further, Dr Robertson, having been referred to the note

made in January 1993, said he "certainly" would be thinking of a sigmoidoscopy

following that consultation and that he "definitely" would have undertaken further

investigations. And as the judge observed, Dr Robertson expressed amazement that

the appellant's notes, in May 1993, made no reference to the - as it turned out, very important - immediately preceding consultation by Dr Bartrum. In the appellant's

argument it was said, correctly, that there was no complaint in the case of actionable

negligence in respect of record keeping. But the point is rather that the absence of any

note whatever, in the appellant's first consultation after Dr Bartrum's January 1993

consultation, relating to the subject looked at by Dr Bartrum, suggests that the matter

was not treated as being of any importance.

To express more generally the view we have with respect to the witnesses relied

on in the appellant's argument, it is that, considered as a whole, they give but faint

support to the appellant's approach to the patient's problem, and there is much in their

evidence which suggests concern about the wisdom of what was done.

The second of the substantial arguments advanced on behalf of the appellant by

Mr Williams QC was that the judge was in error in his treatment of the provisional

diagnosis of "irritable bowel", at the consultation of 16 September 1992. As has been

explained, the judgment criticises the appellant for not having "against the background

of the examination on 25 May 1992 and the provisional diagnosis on 16 September

1992" raised the issue of rectal bleeding with Mrs Locher.

The appellant's notes, together with her oral evidence, show that on 9 September

1992 she was looking into a complaint by Mrs Locher of pain on sexual intercourse. It is

true that the appellant's evidence on this point, as on others, was on the face of it largely

a reconstruction of what she thought would have happened in accordance with her

ordinary practice. Nevertheless the appellant seemed clear that the whole consultation

related to what was thought to be a problem in the gynaecological field. But on 16
September 1992, according to the appellant's evidence:

"I was pretty nonplused, actually, because the patient came with a gynae complaint and I had failed to find an abnormality...the reason I came across the diagnosis of irritable bowel was because I figured that it had to be her bowel that was causing the trouble..."

Although the diagnosis of "irritable bowel" is not one which purports to identify a

disease, the mention of the bowel shows that at that stage the appellant favoured it as

the cause of whatever trouble her patient was having; the noted proposal that

colonoscopy should occur is of course consistent with that line of thinking. Mr Williams'

point is that it was wrong to conclude that there was negligence in failing to investigate

"an unrelated complaint which had completely resolved when one of the possible

investigations for that complaint would have coincidentally determined the existence of

the tumour in its early stages of development".

One of the difficulties about this line of argument is that it depends upon the

accuracy of the appellant's recollection of the reasons for her note "irritable bowel" and

for the associated proposal to have a colonoscopy done. At the end of cross-

examination of the appellant, the primary judge questioned her about the provisional

diagnosis of 16 September, 1992, the questioning clearly implying doubt as to the

adequacy of the witnesses' explanation. The view we take is that the notes the

appellant made on 16 September 1992, referring to irritable bowel and colonoscopy in

the light of the complaints in May 1992 of bleeding from the rectum, justified his

Honour's conclusion that the appellant should have followed the subject up when she

saw the appellant, twice, in November 1992. The circumstance that the appellant's

evidence related the notes of 16 September 1992 solely to the investigation of a

gynaecological problem a week earlier did not make it wrong for the judge to conclude
that the precautions his Honour mentioned were necessary.

It follows, in our view, that there is no ground for upsetting the primary judge's

conclusion that there was a want of care on the part of the appellant. Mr Williams QC

emphasised that, considering the patient's youth and the absence of a history of cancer

of the colon in close relatives, the occurrence of that disease was hardly to be expected.

But on the medical evidence the judge's conclusion on the question of the appellant's

negligence is adequately supported - indeed, it appears to me, with respect, to be

correct.

The other question raised by Mr Williams was the apportionment; the judge

found contributory negligence in Mrs Locher and it was suggested that, as Mrs Locher,

on her recollection of events, was suffering from bowel troubles which were much more

frequent and indeed serious than she disclosed to the appellant, the judge should have

apportioned liability more heavily against her. Consideration of the matter is bedevilled

by the fact that his Honour was apparently unable to make any precise findings based

on Mrs Locher's evidence on this subject; one does not know how frequently her bowel

troubles in truth recurred. It is possible that domination of Mrs Locher's thoughts by

reflection upon her sad fate affected the accuracy of her recollection; but for whatever

reason, she was not a reliable witness and in respect of the issue of contributory

negligence, that, somewhat paradoxically, does not assist the appellant. The onus of

establishing contributory negligence and the extent of such negligence lay upon the

appellant and is in this instance very much dependent upon the facts relating to Mrs

Locher's signs and symptoms being as she recalled them. It is impossible to interfere

with the judge's view on contributory negligence, which was necessarily arrived at on broad and general considerations, rather than on precise findings as to the course of

Mrs Locher's illness.

The appeal must be dismissed with costs.

IN THE COURT OF APPEAL	[1995] QCA 106
SUPREME COURT OF QUEENSLAND

Appeal No. 14 of 1995

Brisbane

Before Pincus J.A.
McPherson J.A.
Byrne J.

[Locher v. Turner]

BETWEEN

MAUREEN JOAN LOCHER

(First Plaintiff) Respondent

AND

PETER WALTER LOCHER

(Second Plaintiff) Respondent

AND

KAREN TURNER

(Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 21st day of April 1995

On 21 February 1994, Mrs Locher underwent a surgical operation for removal of part of her colon. Evidence of a cancerous tumour was detected. It had spread to other parts of her body including the liver. At the trial before Demack J. in late 1994, Mrs Locher's life expectation was estimated to be no more than 12 months. In the action against her general medical practitioner Dr Turner, whom Mrs Locher had been consulting for some years before 1994, his Honour gave judgment for damages for negligence after reducing the amount assessed by 20% for contributory negligence on the part of Mrs Locher.

This is Dr Turner's appeal against that judgment holding her liable in damages.

I have had the advantage of reading the joint reasons for judgment of Pincus J.A. and Byrne J. for dismissing this appeal. I agree with them, and wish to add some observations of my own.

At the trial there was evidence from Dr Olsen, which was accepted by his Honour, that the tumour had become malignant about two years before surgery, which would have been early in 1992. He considered that its spread to the liver had occurred some six to eight months before surgery, which would have placed that event in or after about mid- July 1993. If Dr Turner is to be held liable, it must be because she was negligent in failing to take steps before then to ensure that Mrs Locher was examined in order to eliminate the possibility of cancer.

Before mid-July 1993 there had been some three separate consultations at which such a procedure might reasonably have been recommended in the light of what Dr Turner was told or knew, or what she ought to have known, about the patient's condition. Those consultations were on 25 May 1992; 16 September 1992; and 17 May 1993. The notes made by Dr Turner in respect of those consultations are set out in the joint reasons of Pincus J.A. and Byrne J. The question is whether on any of those occasions the symptoms of which Mrs Locher complained, or of which there was evidence, should have alerted Dr Turner to the possibility of malignancy.

On 25 May 1992 Mrs Locher presented to Dr Turner complaining of bleeding piles, which had commenced after the birth of her second child in 1987. According to Dr Turner's evidence, Mrs Locher's description on that occasion was of, or was consistent with, the presence of bright red blood when she used toilet paper. Dr Turner did an anoscopy, which involves a device with a bright light that enables part of the interior of the anal columns to be inspected.

What she saw on inspection is described in her notes as "inflamed internal haemorrhoids". There is a degree of ambiguity about this description because "haemorrhoids" literally means "discharging blood"; but Dr Turner said simply:

"They were red; they were friable. That meant
they would bleed easily."

She said that her examination led her to believe that she "had exhibited what had caused her bleeding, which was just bright red blood on the toilet paper".

It is not clear from this whether in the course of the examination Dr Turner in fact saw bleeding. However, in cross-examination, she conceded that she "never actually saw a pile bleed", according to her recollection of it. What she saw was an area that was inflamed in consequence of the insertion of the anoscope; but "I was satisfied that she would bleed from that area when straining a stool". The point is significant because the trial judge accepted the evidence of Dr Olsen, which his Honour said "was echoed by all the general practitioners", that it is essential, before making a diagnosis, to identify the bleeding site, which is what he tells fifth and sixth year medical students to whom he lectures. Dr Olsen went on to say "if you can see haemorrhoids that are bleeding, then that's fine".

After referring to this evidence, his Honour concluded, in my respectful opinion correctly, that Dr Turner's evidence to that stage showed that there was "still no unequivocal diagnosis", as she had "only identified a possible bleeding site".

The next relevant occasion on which Mrs Locher consulted Dr Turner was 16 September 1992. Her record of that consultation contains the note "Provisional diagnosis irritable bowel. Patient will increase fibre intake before colonoscopy". Colonoscopy is a procedure used to detect signs of cancer of the bowel. Dr Turner said that, a week before that consultation, Mrs Locher had come to her with a gynaecological complaint, which was of pain from deep penetration during sexual intercourse. At the trial Dr Turner's explanation of the notes was that she would have recommended colonoscopy if the pain had not settled down, but that her provisional diagnosis was that the pain was due to an irritable bowel, which went into spasm during intercourse.

Although Dr Turner described herself as being "pretty nonplused" by the symptoms related at the consultation on 16 September 1992, she did not take the matter further with the patient. His Honour found that she ought herself to have raised with Mrs Locher the matter of whether there was any further bleeding, and that she should have done so during two further consultations in November 1992, even though Mrs Locher did not mention it on either of those visits. It ought not to be assumed that a lay patient would appreciate the potentially lethal significance of a condition causing persistent bleeding from the bowel. Dr Turner's September diagnosis of irritable bowel syndrome was something which, according to the medical evidence accepted by his Honour, ought to have been reached only if other possible diagnoses had been excluded. It was no answer to say that the September diagnosis was only "provisional". It was left unresolved. Dr Turner had not followed it up in November 1992, which was at a time when Mrs Locher, according to her evidence at the trial, was still noticing bleeding.

The third consultation was on 17 May 1993. Before then Mrs Locher had gone to see Dr Turner again on 8 January 1993; but she was away at the time. Consequently, she saw her partner Dr Bartrum. His record of the consultation contains the following notes:

"Problem with piles and low abdominal pain.
Bleeding; loose motions ... Plan: return to see Dr
Turner. ??? sigmoidoscopy or colonoscopy ...".

It is reasonable to expect that Dr Turner would have been alerted by Dr Bartrum's note to undertake further investigation on the occasion when Mrs Locher next visited her, which was on 17 May 1993. Mrs Locher's complaint then was of a "wry" neck. In fact Mrs Locher was on her way out at the end of the consultation, and had reached the door, before Dr Turner read Dr Bartrum's note. Dr Turner said "What's this? You've seen Dr Bartrum. He says you need a sigmoidoscopy". According to Dr Turner, who said she remembered the occasion "clearly", Mrs Locher replied: "It was my piles acting up. It is fine". The matter was not pursued.

The trial judge considered that, on that occasion in May 1993, Dr Turner was apparently relying on her examination made in May 1992 as her "mental response" to Dr Bartrum's note made in January 1993. I take it that, by this, his Honour meant that, despite what Dr Bartrum had recorded on that occasion, which included the query whether a colonoscopy was called for, Dr Turner was content to rely on her original diagnosis made at the consultation in May of the previous year. The shortcomings of that diagnosis had already been noted by his Honour. Dr Turner had not positively identified a bleeding site on that occasion. Her subsequent diagnosis in September 1993, although "provisional" only, was never confirmed. She took no further steps to confirm or investigate it in May 1993 even after reading Dr Bartrum's note of the consultation in January 1993. Instead, she accepted the patient's own diagnosis that the bleeding was due to piles, which were now "fine".

Having regard to the expert evidence stressing the need to identify the site of the bleeding, Dr Turner was in the circumstances not justified in letting the matter drop as she did in May 1992. She ought by then to have been alerted to the possibility that her earlier diagnosis or diagnoses might be wrong. She should not have been satisfied with the patient's own statement that her condition was "fine". The risk that the condition might be life threatening was too serious to pass over in this way. By the time Mrs Locher returned again to Dr Bartrum on 1 December 1993 with further complaints of bleeding, her condition had passed the point where it was capable of being effectively treated.

I would not disturb the decision made by the learned trial judge in relation to either liability or contributory negligence. I agree with Pincus J.A. and Byrne J. that the appeal should be dismissed with costs.