Carney, Deborah Katherine v Newton, Robert

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Underwood CJ,Evans J,Blow J
• Judgment Date: 15 February 2006
• Docket Number: FCA 95/2005
• Date: 15 February 2006

[2006] TASSC 4

SUPREME COURT OF TASMANIA (FULL COURT)

Underwood CJ, Evans and Blow JJ

FCA 95/2005

Carney, Deborah Katherine

and

Newton, Robert

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 , referred to.

Aust Dig Appeal and New Trial [177]

Appeal and New Trial — New trial — In general and particular grounds — Particular grounds — Misdirection or non-direction — Directions as to particular matters — Other matters — Balance of probabilities — Contradictory and confusing directions.

REASONS FOR JUDGMENT

FULL COURT

Underwood CJ Evans J Blow J

Introduction

1 This appeal is brought against a judgment for the respondent following a jury trial. The grounds of appeal are confined to claimed errors by the learned trial judge in his directions to the jury.

2 It is a very sad case. In November 2002, the appellant was diagnosed with a node positive carcinoma of the right breast. The cancer had spread to the lymph nodes and beyond. The appellant's life expectancy is very short.

The appellant's case at trial

3 Both the appellant and the respondent are general medical practitioners. In about 1993, the latter became the former's general practitioner. By her statement of claim the appellant pleaded that she consulted the respondent on 26 January 2002. She did so in order to have a general medical check-up prior to attempting the conception of her second child. This is known as a ‘well-woman check’. In the course of the examination, the respondent examined the appellant's breasts. All these facts are admitted on the pleadings.

4 The appellant pleaded and gave evidence to the effect that the respondent said that he detected what he described as a ‘gritty’ area in the upper outer quadrant of the right breast. The appellant claimed that the respondent also said, ‘We'll just keep an eye on that. In your age group it's likely to be a fibro-adenoma and nothing to worry about. Just keep an eye …’, but advised no further investigations or treatment. The appellant said that she then felt the area referred to and felt some freely moving tiny lumps like grains of half cooked rice.

5 After the consultation on 26 January 2002, the appellant undertook regular self breast examinations. She conceived her second child in July 2002 after an initial miscarriage in May or June of that year.

6 On 24 October 2002, the appellant noticed that she had a swollen red patch on her right breast. As it did not resolve, she consulted the respondent on 28 October 2002. The appellant said that she told the respondent that she thought that she had mastitis and after a gentle examination, as the affected area was painful, the respondent agreed with the appellant's self-diagnosis. He recommended therapeutic ultrasound and prescribed an antibiotic. He also recommended a diagnostic ultrasound after the swelling had gone down.

7 The appellant decided to take matters into her own hands. She arranged for a diagnostic ultrasound to be done on Friday, 1 November 2002, and for a biopsy to be taken by a fine needle aspiration on Monday, 4 November. It was then that the appellant learnt that she had invasive adenocarcinoma, stage 3, with metastases to the lymph nodes.

8 A great deal of expert medical opinion evidence was adduced during the course of the three week trial. It appears to have been common ground that the history of the cancer identified on 4 November 2002 began with the formation of cells in the ducts of the right breast known as ductilecarcinoma in situ (DCIS). DCIS is benign and may remain so or may be a precursor to malignant carcinoma. In the appellant's case, these cells became invasive, ie, developed the capacity to escape from the ducts. For so long as the invasive cells remained in the breast, they were not necessarily fatal and could be removed by surgery. However, in the appellant's case, the invasive cells became metastatic and had invaded other parts of the appellant's body by the time they were detected.

The respondent's case at trial

9 The respondent had no independent recall of the results of the examination of the appellant on 26 January 2002. He relied entirely upon notes that he made at the time of the examination. Relevantly, those notes showed two ticks next to the word ‘breasts’. In his evidence, the respondent explained that that indicated to him that no abnormality had been detected in either breast. He said in his evidence that ‘gritty’ was not a word he would have used to describe something he felt on palpation because it indicated to him something that the patient felt.

The issues at trial

10 It is important to understand that the appellant's case rested upon the proposition that the respondent did detect an abnormality in her breast. There was no allegation that the respondent omitted to detect or to diagnose anything. The appellant's case was that the respondent should have done more than say ‘We'll keep an eye on that’ and in failing to do so, he was in breach of the duty of care that the respondent admitted he owed her and/or in breach of a term of the contract made between them.

11 There was considerable medical opinion evidence, including that given by both the appellant and the respondent, all to the effect that upon detection of an abnormality in the breast, in substance, the appropriate course to take is as follows:

1. (a) Conduct another palpation within not more than two weeks or after the next menstrual cycle, whichever occurs sooner, and if the abnormality is still present, order an ultrasound. If the patient is post-menopausal, a mammogram should be ordered in place of the ultrasound.

2. (b) An alternative to (a) is to immediately order an ultrasound or mammogram upon detection of the abnormality.

3. (c) Depending on the results of the ultrasound or mammogram, order a biopsy.

12 At trial this was referred to as the ‘triple test’. There were some slight differences of opinion about the order of events, but in substance, there was unanimity about the appropriate course to follow upon detection of a lump or lumpy area in the breast. There was no issue that the respondent did not order the triple test and no substantial factual issue that had the respondent detected the abnormality that the appellant said he detected in the appellant's right breast, not to order the triple test was a failure to conform with the standard of care expected of a reasonably competent general practitioner.

13 The major factual issue at trial was whether the respondent detected any abnormality at all. There was substantial evidence to the effect that DCIS may have been present on 26 January 2002, but not then detectable by palpation.

14 By her statement of claim, pars18(a) and 18(b), the appellant put her case on the basis that the breach of the admitted duty of care and/or the breach of contact caused her to suffer carcinoma in the breast and lung, with associated physical and mental sequelae; or alternatively, caused her to lose the chance of a better outcome that would have attended an earlier diagnosis of the treatment of breast cancer.

15 One problem was that there was no means of ascertaining with any certainty what was the condition of the appellant's breast on 26 January. Expert evidence was adduced by both sides as to thestate of affairs on 26 January 2002, based on hindsight reasoning from what was detected following the biopsy in November of that year. The evidence was not definitive. However, for the purpose of determining this appeal, there is no need to survey it in any detail. In essence, there appeared to be a general consensus that ductile cells were probably present in the appellant's right breast when she was examined on 26 January 2002. One expert witness was of the opinion that at that time the cells may have been invasive and the other was of the opinion that at that time it was likely the cells had been invasive. If they were invasive on 26 January 2002, both witnesses were of the opinion that they may, or may not, have then escaped the breast. Had they not escaped the breast, it is likely that breast surgery would have eliminated the cancerous cells. Even if the invasive cells had escaped the breast, treatment by surgery, chemotherapy and radiotherapy soon after 26 January 2002 would have given the appellant a better outcome than is presently the case, but not necessarily destroyed all the invasive cells.

The jury findings

16 The learned trial judge gave the jury an eight page written memorandum together with oral directions. He also gave the jury seven questions to answer. Two of those questions were divided into two parts. The first three questions were:

‘1 Do you find that the defendant breached one or more of the duties of care pleaded in paragraph 17(a), (b) and/or (c) of the statement of claim?	YES/NO
2 If ‘yes’, do you find: (a) That the plaintiff has suffered the injury pleaded in paragraph 18(a) of the statement of claim?	YES/NO
or (b) the injury pleaded in paragraph 18(b) of the statement of claim?	YES/NO
3 If ‘yes’ to 1 and 2(a) or (b), do you find that the injury was caused by any breach of duty you have found proved?	YES/NO’

17 The next three questions dealt with the assessment of quantum of damage and contributory negligence. The last question asked:

‘7 In the event that you find only a breach of a duty pleaded in paragraph 17(d) or 17(e) of the statement of claim, what sum do you assess should be paid as nominal damages? $………………..’

18 With respect to the last question, it was the appellant's case that in addition to the breach of duty that occurred on 26 January 2002, the respondent also breached his duty on the occasion of her consultation with him on 28 October that year. However it was common ground that even if the respondent was then in breach of his duty of care, the damage suffered between the date of that consultation and the...