Mouratidis v Brown [2002] FCAFC 330

FEDERAL COURT OF AUSTRALIA

NEGLIGENCE – Alleged negligence by medical practitioner in connection with investigation of possible breast cancer – Whether practitioner carried out a careful and adequate physical examination of the plaintiff’s breasts, including by palpation – Significance of findings of the trial judge on this issue – Whether palpation would probably have caused the practitioner to carry out further investigations by fine needle aspiration or biopsy – Whether such a procedure would probably have led to discovery of her cancer – No basis for disturbing findings of trial judge on these issues.

COSTS – Whether trial judge erred in making a “Bullock” order in relation to costs incurred in connection with discontinued action against other defendants.

BILL MOURATIDIS and THE AUSTRALIAN CAPITAL TERRITORY v DAVID ROSS BROWN AS APPOINTED REPRESENTATIVE OF THE ESTATE OF THE LATE AMANDA BROWN

A 64 of 2001

WILCOX, HIGGINS and GYLES JJ

7 NOVEMBER 2002

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 64 of 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	BILL MOURATIDIS FIRST APPELLANT THE AUSTRALIAN CAPITAL TERRITORY SECOND APPELLANT
AND:	DAVID ROSS BROWN AS APPOINTED REPRESENTATIVE OF THE ESTATE OF THE LATE AMANDA BROWN RESPONDENT
JUDGE:	WILCOX, HIGGINS and GYLES JJ
DATE OF ORDER:	7 NOVEMBER 2002
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the costs incurred by the respondent in connection with the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 64 of 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

BILL MOURATIDIS

FIRST APPELLANT

THE AUSTRALIAN CAPITAL TERRITORY

SECOND APPELLANT

AND:

DAVID ROSS BROWN AS APPOINTED REPRESENTATIVE OF THE ESTATE OF THE LATE AMANDA BROWN

RESPONDENT

JUDGE:	WILCOX, HIGGINS and GYLES JJ
DATE:	7 NOVEMBER 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

WILCOX and HIGGINS JJ:

1 This is an appeal by Dr Bill Mouratidis and the Australian Capital Territory (“the ACT”) against a judgment entered in the Supreme Court of the Australian Capital Territory in a medical negligence action. Crispin J held that Dr Mouratidis, the third defendant, failed to discharge his duty of care towards the plaintiff, Amanda Brown, in relation to a condition of lobular cancer of her left breast. His Honour entered judgment for the plaintiff, in the sum of $223,143.60, against Dr Mouratidis and the ACT, his employer. The ACT was the fourth defendant. He rejected a claim made by Ms Brown against the fifth defendant, Dr Sanjiv Jain. The action was discontinued against Dr Clare Willington, the first defendant, and her employer and second defendant, Family Planning Association ACT Incorporated (“FPA”).

2 Ms Brown died within a few days of Crispin J’s decision. Accordingly, the appellants named as respondent to their appeal her husband, David Ross Brown. For the purposes of these reasons it is convenient to continue to refer to Ms Brown as “the plaintiff”.

3 In opening the appeal, Ms J Morrish QC (who appeared with Ms L Walker for the appellants) informed the Court that the amount of the judgment had been paid to the plaintiff’s estate and would not be required to be repaid, even if the appeal was successful. Notwithstanding this attitude, the appellants pressed the appeal. Ms Morrish said “if this judgment is permitted to stand, there are far reaching and broad ramifications to the way that medicine will be practised in the Territory”.

4 It is convenient to say immediately that we do not think the case has far reaching ramifications. The case turns on its own facts. If it has any general significance, it is that it illustrates the need for any medical practitioner, who is required to form an opinion about the possible presence of breast cancer, to undertake a careful physical examination of the patient, including by palpation of her breasts. It is not enough for the practitioner to rely upon imaging. The evidence clearly establishes no “fail-safe” technology is yet available.

5 There is nothing new or controversial about those statements. It is common ground that Dr Mouratidis should have conducted such an examination. A major issue is whether or not he did so.

The facts

6 The plaintiff was born on 7 January 1960. In late 1985 she had a cancerous thyroid removed. It was not suggested at the trial that this cancer had any relationship with the plaintiff’s subsequent breast cancer, but Crispin J accepted her evidence that the thyroid cancer left her particularly aware of, and anxious about, the possibility of other cancers.

7 In 1990 the plaintiff married the respondent, David Ross Brown. In March 1991 she gave birth to a son, James. In November 1993 a second son, Hayden, was born. Ms Brown breast-fed Hayden until a few weeks before she attended a clinic in Canberra conducted by the FPA.

8 Ms Brown attended the FPA clinic on 10 August 1995. She gave evidence that she was concerned about two lumps in her left breast. She said one lump was “on the nipple”; but Crispin J found it was more correctly described as being in the areola adjacent to the nipple. The plaintiff said the other lump was “on the left side of the breast”, apparently in the upper quadrant. Mr Brown also gave evidence about these lumps. He claimed to have seen and felt them.

9 At the FPA clinic, Ms Brown was initially examined by Nurse Kippen. She was then seen by Dr Willington, a medical practitioner employed at the clinic.

10 Dr Willington and Nurse Kippen collaborated in the preparation of a medical note that included a sketch of the two breasts. No abnormality was attributed to the right breast. However, two comments were made about the left breast. At the end of an arrow pointing to the centre of the left breast, it was noted “small round mobile pea size lump that appears to be a sebaceous cyst”. A second arrow, pointing to the upper outer quadrant of the breast, was labelled “Firmer lumpier tissue”. Nurse Kippen wrote the words “recently lactating” and “mammogram u/s review in 2 months”.

11 “u/s” is an abbreviation for ultrasound scan, a technique that involves the transmission of sound waves through the body at very high frequencies. When the ultrasound wave hits tissue, it is bounced back to the machine and provides pictures. It was common ground at the trial that ultrasound is useful in searching for carcinomas. However, ultrasound frequently provides false negatives, especially in relation to lobular carcinomas. Ultrasound can reveal lumps and lumpiness. It may reveal a lesion. However the absence of a lesion does not mean there is no carcinoma.

12 Dr Willington referred the plaintiff to Woden Valley Hospital for a mammogram, ultrasound scan and fine needle aspiration if indicated. Fine needle aspiration, or FNA, is a procedure by which a needle is injected into the body to collect cells. The cells are squirted onto a slide which is examined by a cytologist to determine whether they are cancerous.

13 In his reasons for judgment, the trial judge set out the following account of the plaintiff’s consultation with Dr Mouratidis:

“The plaintiff attended at the Woden Valley Hospital on 18 August 1995. She was advised by a woman at the hospital, who may have been a nurse, a radiographer or other medical practitioner, that they could not do a mammogram because her breasts were too dense following breast feeding. This statement seems to have been incorrect but a mammogram subsequently conducted in February 1996 proved negative and the error seems to have had no impact on the plaintiff’s condition. Ultrasound scans of her breasts were undertaken on 18 August 1995 and she had a conversation with the third defendant who was a physician in nuclear medicine and diagnostic ultrasound. She said he told her that since she was only thirty-five years old and there had been no history of breast cancer in the family there was no need to worry. She had previously had cancer of the thyroid but said that when she mentioned this to the third defendant he had reassured her that there was nothing to worry about as it had been so long ago and so remote from the lumps in her breast. He said that the lumps were most likely to have been fibrous and explained that they were in line with the ducts. More significantly, she said that whilst he read the ultrasound he did not feel or otherwise examine her breasts by palpation.”

14 Dr Mouratidis sent a report to Dr Willington that included the following findings:

“There is a cluster of mildly dilated lactiferous ducts lateral to the areola in the left breast. The appearance of the ducts corresponds to the palpable findings. No suspicious lesions were identified. Medial to the left areola there is a mildly dilated lactiferous duct which is slightly thick walled. This may be associated with possible low grade inflammation but in view of the lack of symptoms fine needle aspiration was not performed. The remainder of the left breast and right breast appear normal apart from mild prominence of the lactiferous ducts.”

Dr Mouratidis gave evidence that the word “left”, in the first sentence of this account, should have been “right”.

15 Dr Mouratidis recommended a follow-up study in three months “to help confirm the resolution of the mildly dilated lactiferous ducts”.

16 Dr Willington had a telephone conversation with the plaintiff on 31 August 1995. According to Dr Willington’s contemporaneous note, the plaintiff told her there was no change in the breast lumps and Dr Willington said the ultrasound suggested mildly dilated lactiferous ducts. She noted: “Advised review straight away if any change otherwise routine review report USS in 2/12”; that is, two months.

17 In fact it was over three months before the plaintiff again attended the FPA clinic, on 7 December 1995. This time she was seen by Dr Alexandra Tyson. Dr Tyson noted two lumps close to the left nipple, one being an enlargement of the lump noted in August. She referred the plaintiff to Woden Valley Hospital for a breast ultrasound scan.

18 On 13 December 1995 the plaintiff returned to Woden Valley Hospital. An ultrasound scan was performed by a sonographer and she was seen by Dr Mouratidis. He performed a fine needle aspiration on the lump on the areola of her left breast. The extracted cells were examined by a technician and pronounced to be “all clear”. A cytologist, Dr Jain, subsequently saw the cells and agreed.

19 At the trial, the plaintiff gave evidence that on this occasion, also, Dr Mouratidis failed to feel her breasts or carry out any other physical examination. Her evidence received some support from that of her husband. The trial judge explained the situation in this way:

“The plaintiff’s husband again accompanied her to the hospital and whilst he waited in the waiting room during the ultra sound he was invited into the room where the fine needle aspiration was performed. He was concerned that his wife’s breast had not been examined and pointed out what he described as ‘dimpling tissue’. He told the third defendant that it seemed very similar to the tissue on the breast of the woman in the Rembrandt portrait that had been displayed during breast cancer awareness campaigns. He said that the third defendant had chuckled, conceded that he didn’t know much about art, told them that he was the expert and generally reassured them that there was nothing to worry about.”

20 Dr Mouratidis sent the following report to Dr Tyson:

“Thank you for referring this patient with palpable left breast lump. There is a small subcutaneous nodule in the left breast situated in the 3 o’clock position along the areolar margin. The appearances suggest a benign process such as lymph node or cyst and FNA was performed which yielded a small amount of clear fluid which was sent to cytology.

Breast parenchyma in both breasts is otherwise normal. No suspicious features were noted. Mammography is suggested to further exclude malignancy.”

21 The trial judge recorded that the concerns of the plaintiff and her husband were relieved by Dr Mouratidis’ assurances. However, the lump got bigger and, on 25 January 1996, the plaintiff consulted a local general practitioner. The trial judge found:

“The plaintiff consulted Dr Aiden Lawrence on 25 January 1996. He examined her breasts and whilst he found no suspicious signs on the right breast, he found what he described as a ‘discrete, firm, mobile area’ on the left breast. He said that this area was hard and he measured it with a calliper as being approximately 3 x 4 centimetres in area. The plaintiff told him that it had been growing. He also found a nodule in the left areola which he thought may have been a sebaceous cyst. He made arrangements for her to see a surgeon, Dr Dyason, as a matter of urgency.”

22 The plaintiff saw Dr Dyason six days later, on 31 January. He found a diffuse lumpiness in the upper outer quadrant of the left breast and a solitary nodule in the areola which he said looked like an epidermoid cyst. He arranged for Ms Brown to have a further ultrasound scan and a mammogram of both breasts.

23 These procedures were carried out but they failed to reveal carcinoma. Perhaps partly influenced by a mistaken belief that the FNA procedure undertaken by Dr Mouratidis in December had been on the lump (or lumpiness) in the upper outer quadrant of the left breast, rather than on the nodule in the areola, Dr Dyason diagnosed fibroadenosis. However, Dr Lawrence was not convinced. He arranged for Dr Dyason to carry out an excision biopsy.

24 The excision biopsy revealed extensive carcinoma. On 7 March 1996 Dr Dyason performed radical mastectomy but neither this surgery nor any of the subsequent treatment arrested the development of the cancer. As the trial judge found:

“The plaintiff’s condition gradually deteriorated and by the time of the hearing it was common ground that death was inevitable.”

The trial judge’s findings

25 Crispin J noted the plaintiff had pleaded a cause of action for breach of contract against Dr Mouratidis but had failed to establish the existence of any contract between herself and him; Dr Mouratidis was employed as a staff specialist by the hospital and any contract was with the hospital. The judge went on:

“However, I found the claim for a cause of action for negligence established. Whilst I had no reason to doubt that the third defendant was otherwise a responsible and conscientious medical practitioner, I was satisfied that he had failed to carry out a proper or adequate examination of the plaintiff’s left breast in August and December 1995. I was also satisfied that if he had done so he would have found a lump, or at least a discrete area of firm lumpy tissue in the upper left quadrant, and that he would, or should, have then performed a fine needle aspiration on that area. I found that if such a procedure had been properly performed it would probably have revealed the presence of lobular carcinoma and treatment for that condition would have been provided much earlier that [sic] it was.”

26 This passage contains three findings, each of which was critical to his Honour’s ultimate conclusion. Each was challenged on the appeal. First, he was satisfied that Dr Mouratidis “failed to carry out a proper or adequate examination” of the plaintiff’s left breast in either August or December. Second, his Honour was satisfied that an adequate examination, on either of these occasions, would have revealed a lump, or at least lumpiness, that would have indicated a need for FNA. Finally, the trial judge found that FNA, in either August or December, would probably have revealed the presence of lobular carcinoma.

27 Crispin J based his finding about the first issue, the alleged failure to carry out a proper examination, substantially upon the evidence of the plaintiff and her husband. He said:

“Both the plaintiff and her husband impressed me as credible and reliable witnesses. The plaintiff had previously suffered from thyroid cancer and it was entirely understandable that both she and her husband would have been concerned about the discovery of lumps in her breast. Whilst I did not take into account evidence of what she had told her husband after the ultrasound examination in August 1995, I accepted her evidence as to what had occurred on that occasion. Similarly, I accepted her evidence and that of her husband as to what occurred during and immediately after the ultrasound examination in December 1995.”

28 Dr Mouratidis did not dispute that the appropriate course had been for him to palpate the plaintiff’s breasts. He claimed to have done this during each consultation. Dr Mouratidis asserted an independent recollection of both consultations, even extending to elements of the conversations he had with the plaintiff. But Crispin J did not accept this. In his reasons for judgment, his Honour said:

“Having listened carefully to the evidence of the third defendant, for whom the consultations were but two amongst many, I formed the impression that he had little actual memory of the examinations and that he had attempted to reconstruct what might have occurred substantially by reference to ultra sound scan photographs taken on those occasions. He had become aware of the allegations of negligence only when served with initiating process earlier this year, and more than five years had then elapsed since each of the examinations. Whilst her evidence added little to the impression I had already formed, Ms Holdsworth, the senior technical officer who examined the slides of aspirated tissue in December 1995, said that when she saw the third defendant in June this year he had ‘asked me for my memories of what happened because I don’t think he particularly remembered the patient’. I am sure he did his best to recall and/or reconstruct what had occurred but his [sic] I found at least some aspects of his evidence unconvincing.”

29 Crispin J also declined to accept Dr Mouratidis’ explanation for failing to do an FNA at the August consultation. He said:

“The third defendant maintained that on that occasion there had been a cluster of mildly dilated ducts ‘lateral to the areola’ in the left breast and that he had not done a fine needle aspiration because ‘clinically there was no discrete lump’. I was unable to accept this assertion. On the contrary, I accepted the evidence of the plaintiff and her husband that there had been a discrete lump, that it was within the areola and that it was in the ‘three o’clock’ position in relation to the nipple. Furthermore, Dr Willington had noted the presence of a pea sized lump in that position on 10 August 1995 and Professor Langlands, a distinguished oncologist who gave evidence for the defendants, agreed that ‘it defies belief’ that such a lump would have disappeared in only four days.”

30 After discussing the evidence about the condition of the plaintiff’s left breast in December, Crispin J found “that neither the lump on the areola nor a mass, or at least a discrete area of ‘firmer, lumpier tissue’, in the upper left quadrant had ever disappeared during the relevant period”.

31 Crispin J went on:

“42. I also accepted the plaintiff’s evidence that the third defendant had not examined her breasts with palpation on either occasion.

43. As Ms Morrish emphasised, it would have been inappropriate to judge the manner in which the third defendant discharged his professional duties by reference to facts and circumstances which became clear only in hindsight or, as one expert witness put it, by looking through a ‘retrospectoscope’. Nonetheless, I was satisfied that his failure to examine her breasts in this manner involved a significant departure from the standard of care that might properly have been expected from a competent medical specialist in the circumstances established by the evidence.

44. Professor Levi, who gave evidence on behalf of the defendants, agreed that the area of firmer lumpier tissue identified by Dr Willington would have been the most suspicious area and that on the balance of probabilities it had been ‘clinically available from August [1995] through to the end of February [1996]’. He also agreed that if the lumpiness had been there as described it was highly unlikely that a clinician competently carrying out his or her duties could not have found it during that period. It was also significant that the area of lumpiness had been seen and felt by the plaintiff and her husband, and observed and described by Dr Willington prior to the first meeting with the third defendant.

45. Yet in his report of the August 1995 consultation, the third defendant mentioned only a mildly dilated lactiferous duct medial to the left areola and said that the remainder of both breasts had appeared normal apart from mild prominence of the lactiferous ducts. There was no suggestion that he had detected the presence of either a discrete area of lumpiness or a lump.

46. Even after the consultation in December, the third defendant’s report, whilst identifying a small subcutaneous nodule said to have been along the areolar margin, stated that breast parenchyma in both breasts had been ‘otherwise normal’ and that no suspicious features had been noted.

47. The report did not contain any suggestion that he had noted a lump, lumpiness or other abnormality in the upper left quadrant, considered its possible aetiology and concluded that it was merely the manifestation of a benign condition. On the contrary, it asserted that the breast parenchyma had been normal. That was plainly incorrect.

48. I was satisfied that a significant abnormality had been present in the left upper quadrant of the breast in both August and December 1995, and that it would have been discerned by the third defendant on either occasion if he had carried out an appropriate examination with due palpation of the breast. I was also satisfied that on both occasions he had failed to do so even though his attention had been drawn to the potential abnormality by the terms of the referral from Dr Willington in August and by Mr Brown’s comments in December. I concluded that his failure to do so had amounted, in each case, to a breach of the standard of care that he owed to the plaintiff.”

32 Crispin J then turned to the second and third issues, the consequences of Dr Mouratidis’ failure to discover the lump, or lumpiness, in the left upper quadrant of the plaintiff’s left breast. He said:

“49. The evidence established, in my view, that a reasonable standard of care on the part of a person in the position of the third defendant would have involved the application of the so called ‘triple test’ for any lump in the breast at least in the absence of any obviously benign explanation. The triple test consisted of a clinical examination, imaging by mammography or ultrasound, and fine needle aspiration or biopsy. I was satisfied that this standard required a person in the position of the third defendant to apply the triple test to both ‘lumps’ and not merely the one in the areola. I was also satisfied on the evidence that the lump or area of lumpiness in the left upper quadrant should have been regarded as the more suspicious of the two lumps. Consequently, I concluded that the third defendant would probably have carried out a fine needle aspiration on this lump or discrete area of lumpiness if he had discovered it, as he should have done, in August and/or December 1995, and that any failure to have performed such a procedure would have amounted to a further breach of the standard of care that he owed to the plaintiff.

50. I accepted that lobular carcinoma may be spread in a diffuse but somewhat irregular pattern throughout the breast tissue and that, as Professor Langlands pointed out, there may have been some doubt about whether malignant cells would have been detected by a fine needle aspiration. However, it was customary to make several ‘passes’ with the needle so that the aspirate was collected from different portions of the relevant area. In all of the circumstances I was satisfied on the balance of probabilities that, if the third defendant had identified the lump in the upper left quadrant in August 1995 and conducted multiple passes in that area, the carcinoma would have been discovered and appropriate medical intervention promptly undertaken.”

Contentions on the appeal

33 In their written Outline of Submissions, filed prior to the hearing of the appeal, counsel for the appellants put a number of submissions about inadmissibility of evidence. Although they were never abandoned, these contentions did not loom large in the oral argument. We will refer to matters of admissibility in dealing with particular issues, but it is unnecessary for us to discuss all the objections raised by counsel.

34 In their written Outline, counsel identified three “critical facts in contention”:

“1) whether in either or both August or December 1995 Mrs Brown presented to Dr Mouratidis with a discrete lump in the upper outer quadrant of her left breast (as opposed to an area of lumpiness);

2) whether in either or both August or December 1995 Dr Mouratidis ought to have performed FNA on the upper outer quadrant AND the areola;

3) whether detection in either August or December 1995 would have made a difference to the outcome.”

Whether the plaintiff presented in August with a discrete lump in the upper outer quadrant

35 In relation to the first issue, counsel contended that some expert witnesses were permitted to express opinions outside their areas of expertise. Counsel said the only evidence supporting a finding that the plaintiff did so present came from impermissible sources: experts speaking outside their area of expertise and the plaintiff and her husband. They went on:

“Absent the impugned evidence, the only admissible evidence established that there was no discrete lump in the upper outer quadrant. Put another way, it was not open to find that there was a discrete lump that then existed in the upper outer quadrant. Rather there was an area of lumpiness, the existence of which was confirmed by Dr Mouratidis, consistent with post lactational changes and fibroadenosis. The imaging slides taken at each ultrasound consultation with Dr Mouratidis and tendered in evidence were explained in evidence by Dr Mouratidis. By reference to the slides, he was able to confirm the absence of a discrete lump in the upper outer quadrant or any sinister feature in either of Mrs Brown’s breasts. It was never put to him in cross-examination that those slides or the ultrasound process itself did in fact disclose the presence of lobular carcinoma or any hint as to its presence. No evidence was called to contradict his interpretation of the slides or his findings conducted during the ultrasound. Nor were any sinister features or discrete lumps identified in those slides. Given the diagnosis of benign conditions consistent with the imaging and the absence of sinister indicia there was no reasonable basis to do a ‘blind stab’ FNA in the upper outer quadrant. To conduct a ‘blind stab’ would be a departure from standard procedure. To hold otherwise would be to encourage the practise of ‘defensive medicine’ and lead to a higher false negative ratio, thus rendering the current system even less reliable.” [footnotes omitted]

36 We do not find it necessary to deal with the objections to the admissibility of the experts’ opinions. Crispin J was entitled to receive, and act upon, the evidence given by the plaintiff and her husband as to their observations of the condition of the left breast. This was not inadmissible opinion evidence but factual evidence as to what the witnesses saw and felt. Moreover, their evidence was supported by the findings of Dr Willington and Nurse Kippen, as contemporaneously recorded by them. It will be recalled that they located an area of “firmer lumpier tissue” in the upper outer quadrant of the left breast. On the document by which she referred the plaintiff to Woden Valley Hospital, Dr Willington inserted the words “lumpy upper outer quad”. Although Dr Willington told Crispin J that she no longer had an independent recollection of her findings in August 1995, she affirmed the accuracy of her notes. The result was that the Court had evidence of Dr Willington’s observations. Once again this was factual evidence based on what she saw and felt, not impermissible opinion evidence.

37 As will be apparent from the extract of their Outline set out in para 34 above, counsel for the appellant attempted to draw a distinction between “a discrete lump” in the upper outer quadrant and “an area of lumpiness” in that part of the breast. It seems to us this is a semantic distinction. In describing the ultrasound result at the trial, Dr Mouratidis said there was “no big black area” to suggest a tumour in the left upper quadrant but this area was “lumpy”. He added that “most of the breast was lumpy as well”. He put this down to post-lactation. The suggestion at trial was that this was the reason why he did not take any action to investigate the cause of the lumpiness.

38 It seems apparent that, although he described himself as “a physician in nuclear medicine and diagnostic ultrasound” and stated specifically that he was “not a radiologist”, Dr Mouratidis relied entirely on the ultrasound. In response to an invitation by Ms Morrish, in the course of his evidence in chief, to “take us right through from the beginning when the patient turns up”, he said:

“Right, so the patient was directed to the ultrasound room by the sonographer. The sonographer would then perform the bilateral ultrasound examination. Once that was completed the sonographer called me in to review the study. The sonographer indicated to me that she found some dilated ducts and that was all that was found, so I proceeded and checked her findings with the ultrasound machine in the left breast to confirm her findings, palpating that lump in the left areola which I confirmed to be dilated ducts. The lumpy area in the upper outer quadrant, there’s no lesion at all that could find [sic] on ultrasound. The right breast demonstrated a mildly thickened duct in the 3 o’clock position. Now, there was a typographical error in the report saying that the thickened duct was in the left breast, but in actual fact it was in the 3 o’clock position in the right breast, and I was there directly to supervise, just to know that to be a fact. The patient had no symptoms pertaining to a thickened duct, and I treated that to be some mild form of chronic inflammation and therefore no further investigation such as fine needle biopsy in that area was indicated. The dilated ducts corresponded to the lump that was present along the left areola. These dilated ducts are lactiferous ducts. There was no mass lesion seen, there was no evidence of any tumour. I do not feel that there was any indication to biopsy of [sic] this area. If I had inserted a needle into these ducts then I’m certain that only milk would have been aspirated.”

39 In cross-examination, Mr J Purnell QC, who appeared with Mr D Mossop for the plaintiff, suggested to Dr Mouratidis that he did not clinically examine the plaintiff’s breast. Dr Mouratidis replied:

“I absolutely refute that. I examined her breast again after the ultrasound had been done by the sonographer. I checked the findings myself with clinical palpation and direct correlation with the ultrasound.”

40 Later, Mr Purnell put to Dr Mouratidis that he did not feel the plaintiff’s breast on any occasion. He responded:

“I examined her breasts (on) both occasions with the ultrasound.”

41 In the light of this evidence, it seems clear that any palpation by Dr Mouratidis of the plaintiff’s breasts was purely ancillary to the ultrasound procedures. It was performed in order to check the sonographer’s findings, not to investigate the lumpiness observed by Dr Willington in the upper outer quadrant of the left breast or to determine by palpation whether that lumpiness appeared to be firmer, or a more discrete mass, than the general lumpiness observed on the ultrasound.

42 The failure to investigate the lumpiness by palpation was a significant omission. We say this because of evidence that Dr Mouratidis himself gave at the trial. Dr Mouratidis said that, in the case of a 35 year old woman, the false negative rate of ultrasound for breast carcinoma was about 20%. Where the carcinoma was lobular, rather than ductal, the rate was even higher. In a situation where there was more than a one-in-five chance that ultrasound would fail to pick up a lobular cancer, it was obviously imprudent for any diagnostician to rely on ultrasound alone.

43 It was common ground amongst the independent medical experts that investigation of the area identified by Dr Willington required, at the least, careful palpation of that area. The lumpiness needed to be delineated and its nature assessed. It would then have been necessary for Dr Mouratidis to address the question whether it was appropriate to conduct fine needle aspiration of the delineated area or to take a biopsy. He would have been required to make a professional judgment about that question. However, his report to Dr Willington makes no reference to his having done any of those things. In his report, he referred to his observations of the areola area of the breast, but he dismissed the remainder of the left breast and the right breast with the comment that they “appear normal apart from mild prominence of the lactiferous ducts”.

44 The trial judge found that Dr Mouratidis had not carried out a proper and adequate palpation of the breasts and, therefore, had failed to detect a lump, or at least a discrete area of lumpiness, which then existed in the upper outer quadrant. No attempt was made by counsel for the appellants to persuade us that his Honour erred in accepting the evidence of the plaintiff that there was no palpation of the breast. Whether or not Dr Mouratidis touched the plaintiff’s breasts in assessing the ultrasound, we think the first issue raised by counsel for the appellants should be resolved by holding that it was open to his Honour to conclude, as he did, that Dr Mouratidis failed to carry out a proper and adequate examination of the plaintiff’s left breast, either in August and December 1995, and thereby failed to detect a lump, or lumpiness, whose discovery would have required him, at least, to consider the desirability of further investigation by fine needle aspiration or biopsy.

45 Although they accepted that Dr Mouratidis owed a duty of care to the plaintiff, counsel for the appellants submitted that the extent of his duty was that owed by a technician, rather than a physician. We cannot accept that submission. Dr Mouratidis was not a mere technician. He was a qualified medical practitioner practising as such. He called himself a physician, albeit with particular expertise in nuclear medicine and diagnostic ultrasound.

46 More fundamentally, Dr Mouratidis accepted the commission to investigate the condition found by Dr Willington and to make a judgment concerning further medical action. On the basis of the unanimous independent expert evidence, he thereupon became obligated to perform the “triple test” referred to by Crispin J: see para 32 above.

47 The point was made by one of the defendants’ expert witnesses, Professor Langlands. He said:

“The triple test is an admission that all tests are fallible. No test that I know of is 100% accurate 100% of the time. And therefore in assessing a lump in the breast it is common to say that the diagnostic triad or the triple test must be followed. There must be examination by a clinician who knows what they are feeling.

Okay, who is the clinician? --- A qualified doctor.”

48 Later, Dr Langlands said:

“In terms of examination. If the doctor didn’t examine her breasts I would agree that that’s a departure from an applicable standard of care.”

Whether Dr Mouratidis should have performed FNA

49 During the course of his evidence, Dr Mouratidis agreed that lobular cancer is often multifocal. He accepted counsel’s suggestion that “there was a multifocal area in the left upper quadrant on presentation to [him] on 14 August 1995”, and again on 13 December 1995. Dr Mouratidis explained that it was not possible to carry out a biopsy unless one “can see one of the foci … that would serve as a target”. But he did not suggest it would have been impossible to carry out a fine needle aspiration on a multifocal area.

50 This evidence tends to suggest the desirability of fine needle aspiration having been administered in August, and to the lumpy upper outer quadrant area (as well as to the areola lump) in December. But we accept the submission of counsel for the appellants that it must always be a matter of professional judgment whether to administer fine needle aspiration. A medical practitioner ought not be condemned simply because a decision made in the exercise of his or her judgment, but after carrying out all necessary prior procedures, turns out to have been unwise.

51 Crispin J appreciated that point. He did not find against Dr Mouratidis on the basis that he made a poor professional judgment. His Honour did not deal with the FNA issue in isolation from the palpation issue. He did not hold that a person in Dr Mouratidis’ position was bound, on pain of otherwise being considered to be negligent, automatically to administer fine needle aspiration. Dr Mouratidis was held to be negligent in failing to perform a standard procedure (careful palpation of the suspect area) that needed to be carried out before a proper professional judgment could be made. He thereby failed to discover and delineate the lump, or lumpiness, and therefore to make a proper professional judgment as to whether he should proceed to fine needle aspiration or biopsy. If the trial judge had found that Dr Mouratidis properly investigated the lumpiness, and then made a considered judgment not to proceed to fine needle aspiration, we would not be prepared to say he was negligent. The plaintiff would have established (with hindsight) no more than an error of professional judgment.

52 The second issue posed by counsel for the appellants is misstated. There is not, and never was, a legal issue whether Dr Mouratidis ought to have performed FNA in August, or in the upper outer quadrant in December. The complaint was of failure to make an informed judgment about this question, after having carried out a full palpatory examination of the plaintiff’s left breast, and especially of the area noted by Dr Willington. Crispin J held Dr Mouratidis did so fail. That finding was clearly open to him.

53 Counsel for the appellants submitted there was no admissible evidence to suggest the likelihood that, if FNA had been conducted on the upper outer quadrant in August or December, lobular carcinoma would have been detected. Counsel pointed out that Dr Mouratidis performed FNA on the lump on the areola in December 1995; there was no suggestion that he failed to do this in a competent manner, yet the cytology report failed to detect a carcinoma. Counsel said either the FNA conducted in December 1995 picked up cancerous cells that were misinterpreted by the cytologist or, because of the inherent difficulties of the situation, it failed to pick up cancerous cells that were in fact present. Counsel submitted:

“There was no evidence to suggest that detection would have been any easier had the FNA been performed in the upper outer quadrant or that the result would have been different to the results of the testing on the areola. There was no evidence that the cancer in the upper outer quadrant was any different to that in the areola or that any cells taken from the upper outer quadrant would have been any easier to identify as affected by lobular carcinoma.”

54 Crispin J dealt with the chance of FNA detecting cancer in the upper outer quadrant in para 50 of his Reasons for Judgment, quoted at para 32 above. He did not deal with the question whether the failure of the December FNA to detect cancer cells in the areola region meant it was unlikely that FNA would have detected cancer cells in the upper outer quadrant. Perhaps the appellants’ present argument was not put to him. Whether or not it was, there does not seem to be any evidence about that question. It does not appear that any expert witness was asked to comment upon the significance for the upper outer quadrant of the negative December FNA test on the areola. However, several witnesses deposed that an FNA test on the upper outer quadrant in August would probably have revealed the cancer.

55 Professor Martin Tattersall, a cancer physician and educator called by counsel for the plaintiff, gave this evidence in chief:

“Now, what is a person in your opinion in the position of Dr Mouratidis supposed to do with a lump that is suspicious and is not diagnosed as benign on presentation first of all on 14 August ’95? --- Confirm that the lump is present, and if it’s present to acknowledge that an explanation for its presence has not been reached.

And also on 13 December ’95 the same question? --- Confirm that there were three lumps and acknowledge that one of them had got bigger, a new one had developed, and that none of them had an explanation.

And when it comes to carrying out the fine needle aspiration with these facts, first of all in your opinion should both areas have been aspirated on 14 August ’95? --- I would expect Dr Willington who had written a referral to expect that to happen.

And you? --- I would, if I’d written that referral, I would have expected that to happen.

And from what you now know if there had been an aspiration or biopsy of the upper outer quadrant area on 14 August would lobular carcinoma have been found? --- I believe malignant cells would have been found if it was done by fine needle aspiration, and if it was done by core biopsy invasive cancer would have been determined.”

56 At a later stage, Professor Tattersall was asked what would have been the chance of detecting lobular cancer if the upper outer quadrant had been biopsied or aspirated on 13 December 1995. He responded: “Very close to 100%.” In cross-examination Ms Morrish pointed out this question aggregated two different procedures; biopsy being the extraction and analysis of tissue, as distinct from cells. The evidence went on:

“But if we look at fine needle aspiration on its own without biopsy, you would agree, wouldn’t you, that fine needle aspiration is not 100% failsafe, correct, in terms of picking up lobular carcinoma? --- It will pick up malignant cells in the majority, vast majority of patients if assessment is adequate and it’s appropriately aspirated from the area of concern.

So I take it your answer is it all depends on where the needle is inserted, the area it’s inserted, correct? --- Yes.

And the adequacy of the sample? --- Yes.

And hitting the right target? --- And the appropriate interpretation of the cytology result.

Yes. And even all those things being taken into account you can still get false negatives, correct? --- Yes.”

57 Similar evidence was given by Dr Anne Sullivan, a medical oncologist called on behalf of the plaintiff. In a report admitted into evidence, she said:

“If the larger, more dominant abnormal area in the upper outer quadrant of the left breast had been fine needle or core biopsied in August 1995, I believe that more likely than not, an accurate diagnosis would have been reached.”

58 In oral evidence in chief, Dr Sullivan said this:

“Just in general terms, is it your opinion that if there had been a fine needle aspiration of the upper outer quadrant of the left breast on 14 August 1995, would that have shown lobular cancer? --- I think it’s very likely it would have shown lobular cancer.

And in your opinion if she had been treated then, that is, in August of ’95, would that have affected her life expectancy? --- I think it would have done, yes.

And – in what way? --- I think had she been treated in August 1995 at that time we would have found a breast cancer with less nodal involvement. … Degree of nodal involvement is directly related to prognosis.”

59 The problem of finding a target was put to Dr Sullivan in cross-examination. She responded:

“I think if a fine needle aspiration biopsy is indicated, and we know that imaging doesn’t always tell us where the lump is or what the lump is, that you need to feel the breast and be guided by the person complaining of the symptoms, or the person that’s found the signs.”

60 Professor Levi reported:

“With regards to appropriate treatment based on the symptoms presented in August 1995. As documented in the clinical notes, evidence of a lump was described in the upper outer quadrant of the left breast as of August 1995. This must have been regarded with some degree of suspicion for the recording to have been made in the clinical notes. Despite the negative ultrasound, if clinical suspicion had been present as of August 1995 then consideration for relevant biopsies would have been appropriate. This would have included initial fine needle biopsy and if this had proven negative then consideration for excision biopsy if clinical suspicion remained would have been the appropriate approach.

…

With regards to the question of inordinate delay in diagnosis of Mrs Brown’s lobular cancer. In the context of the presentation in August 1995 with a mass lesion in the upper outer quadrant of the breast full diagnostic procedures would have been most appropriate including fine needle biopsy and if necessary, excision biopsy. These were not undertaken at the time and therefore failure to undertake these procedures in both August and December 1995 meant the diagnosis was not made until February 1996. It is however appropriate to indicate that as stated on several occasions above, it is my opinion that this lady had biologically aggressive disease and even if the diagnosis were made as of August 1995 the potential for her to have widespread axillary lymph node involvement was very high as of August 1995 and therefore her prognosis would be poor with a very high risk for the development of metastatic disease, irrespective of management approaches undertaken.”

61 Professor Langlands gave this evidence:

“Now, if a person presents with two areas of concern applying the triple test what should occur is that the test is applied until the lumps are explained away, agreed? --- Yes.

That means that if the mammogram is negative and the ultrasound is negative you then must go on to biopsy, agreed? --- Yes.

And if that’s negative then you’ve done your best in terms of your obligations under the triple test, agreed? --- Yes.

In this presentation it means, does it not, that there should have been on 14 August a biopsy of at least the 3 o’clock lump? --- Yes.

And there should have been also a biopsy if it was discernible clinically of the upper outer quadrant on 14 August? --- By biopsy do you mean fine needle aspiration?

Well, the biopsy, not – a core biopsy, the smaller one not the ---? --- Not an excision.

Not an excision biopsy, agreed with what I’ve put? --- Yes.”

62 Professor Langlands thought the plaintiff certainly had cancer on 14 August 1995. In that case, a biopsy in August would presumably have revealed that fact.

63 Because of the absence of evidence directed to the point, it is impossible for us to reach any conclusion about the significance for the upper outer quadrant of the December FNA procedure for the areola proving negative. Perhaps this was a false negative. Perhaps the cancer in the upper outer quadrant, which all the experts accepted existed at that time, had not reached the areola area. Whatever the position, the evidence is overwhelming that an FNA in August would probably have revealed cancer in the upper outer quadrant.

Whether detection in August or December would have made a difference

64 The final issue posed by counsel for the appellants is whether detection in August or December made a difference to the outcome. In one sense, it obviously did. As his Honour observed, the consequence of Dr Mouratidis’ failure to discover the carcinoma in either August or December was that the “mass in her left breast was permitted to grow unimpeded for the additional period between the time when it might have been excised had it been discovered and the time of its excision in March 1996, and she lost the benefit of any treatment that may have been prescribed during that period”.

65 In another sense, on Crispin J’s findings, the delay in diagnosis made no difference; probably, the plaintiff would anyway have ultimately succumbed to the cancer from which she was suffering when she first saw Dr Mouratidis in August 1995.

66 At para 72 of his reasons, Crispin J noted the submissions of counsel on damages:

“The assessment of damages involved profound difficulties. The plaintiff already had the cancer when she saw the third defendant in August 1995 and it was probably already incurable. However, I was prepared to infer that if the carcinoma been discovered by cytological examination of slides of a fine needle aspiration performed on 13 August 1995 appropriate treatment would have followed promptly. Ms Morrish did not contend to the contrary. Counsel for the plaintiff argued that the timely provision of treatment would have been likely to have arrested, or at least slowed, the development of the carcinoma and given her a substantial chance of living for a significantly longer period and an, albeit small, chance of surviving for a normal life span.”

67 After noting that a plaintiff may obtain damages for loss of a chance of a benefit, Crispin J analysed the evidence concerning the plaintiff’s prospect of surviving for various periods of time if the cancer had been diagnosed in August 1995 and promptly treated. He concluded (at para 99) “that the plaintiff had lost a 40 to 50 per cent chance for living for a period of ten years, at least a 20 per cent chance of living for twenty years and what was described as a ‘real’, though otherwise unquantified, chance of living for as long as fifty years”. Crispin J assessed damages by reference to that conclusion.

68 Counsel for the appellant criticised his Honour’s approach. They said:

“It is submitted that necessary evidentiary links in the chain for calculating the measure of damages were not established by the Respondent on the admissible evidence. It is submitted that the following matters must be established before a mathematical calculation can be applied: 1) the state of health Mrs Brown might otherwise have enjoyed had lobular carcinoma been detected and treated in either August or December 1995, 2) the difference to the state of health she actually had at those times, 3) if radical mastectomy and chemical treatment would have ensued in either period, the additional pain and suffering experienced, 4) if that treatment had been administered in either period, with the same side effects, the period in respect of which Mrs Brown was in any better condition to return to work, 5) the additional period that would have been available for Mrs Brown to return to work had she been so willing, free from pain and suffering and/or free from symptoms, 6) the additional care required for herself and her children, and 7) any additional loss.” [footnotes omitted]

69 No doubt it would have been helpful to Crispin J to have had precise evidence on each of these matters. But, in the nature of things, it was impossible for that to be made available. Given that the cancer was not discovered before February 1996, nobody could have said with certainty what might have been the situation if it had been discovered in August or December. An expert could only look at the evidence as to her condition in February and, on that basis, offer an opinion as to her likely condition in August and December. This was the course followed by all the experts, including those called by the defendants. On the basis of their opinions about those matters, each of the experts offered views about the matters mentioned by counsel.

70 The assessment of damages for loss of a chance is an inherently subjective exercise. The position was discussed by a Full Court in Enzed Holdings Ltd v Wynthea Pty Ltd(1984) 57 ALR 167 at 182-183. The cases there cited emphasise that, where precise evidence is not available, the court must do the best it can. An assessment must be made, even if this involves guesswork or speculation.

71 In the present case, the trial judge examined all the expert evidence concerning the plaintiff’s chances of surviving for particular periods of time, if the cancer had been diagnosed and treated in August 1995. He selected a range of percentages for the chances of surviving for particular periods of time; this range lying between those advanced by Professor Tattersall and Dr Sullivan on the one hand and Professor Levi on the other. It was, of course, impossible for his Honour to demonstrate the correctness of his selected range. He could only take what he thought to be a fair range, having regard to the whole of the evidence. Counsel for the appellants did not submit the selection process omitted regard to a relevant matter or involved a misunderstanding of the evidence. They implicitly conceded that the selected range was open to his Honour on the evidence. We see no error in its adoption.

72 Having selected the range, Crispin J applied it to each of the heads of damage he had to consider. Some of those items – for example, general damages, loss of future earning capacity and the likely cost of future child care – involved the making of further subjective judgments. That is always the case in respect of future events. However, the fact that an assessment of future loss will necessarily entail subjective and speculative judgments has never been seen as a reason for courts to eschew the task.

73 Counsel for the appellants took particular objection to a finding by Crispin J that the plaintiff would have remained on Tamoxifen, if her prognosis had been more positive. His Honour dealt with this issue at paras 93 to 97 of his reasons. We agree with his Honour’s approach. The question whether the plaintiff would have remained on Tamoxifen, if her prognosis had been more hopeful, was a matter to be evaluated as one of substance, not on the basis of whether or not the plaintiff incanted a formula about what she would have done in a hypothetical situation. The most critical matter, in determining whether the plaintiff would have been likely to have accepted Dr Lawrence’s advice (on a better prognosis) to continue Tamoxifen, notwithstanding the side effects, was the plaintiff’s relationship with Dr Lawrence and her own character and personality. The trial judge had a superior opportunity to assess those matters than that available to an appellate court.

74 We find no appellable error in the trial judge’s conclusions about liability or the quantum of damages.

Costs

75 When the proceeding was commenced, the plaintiff included as defendants Dr Willington and the FPA. She did this because the file of documents produced to her solicitors by Woden Valley Hospital, in response to a request for the “hospital admission cards and clinical notes”, did not include Dr Willington’s referral note. Accordingly, the solicitors were unaware that Dr Willington had detected lumpiness in the upper outer quadrant of the left breast.

76 The referral note was subsequently produced to the plaintiff’s solicitors. They then indicated their client would discontinue her action against Dr Willington and the FPA. Subsequently, she did so.

77 Crispin J ordered that Dr Mouratidis and the ACT pay the plaintiff’s costs and that these costs were to include the costs incurred by the plaintiff in respect of the proceedings against Dr Willington and the FPA.

78 Counsel for the appellants submitted that Crispin J erred in ordering that the costs payable by their clients were to include costs in respect of Dr Willington and the FPA. They said the omission to provide the referral document was inadvertent and it was supplied as soon as the omission was noticed.

79 There may be a question whether, strictly, the referral document fell within the description of documents requested by the plaintiff’s solicitors. But the hospital understood it was required to be produced; that is why it was supplied when the omission was realised.

80 Contrary to the premise underlying counsel’s argument, the order made by Crispin J does not depend upon it appearing that the unsuccessful defendants intended to act improperly. The relevant order was a “Bullock order”, so named because of its use in Bullock v London General Omnibus Co [1907] 1 KB 264.

81 Authorities relating to the imposition of Bullock orders were discussed by Asche CJ in Lackersteen v Jones (No 2) (1988) 93 FLR 442. At 449 his Honour suggested they establish the following principles:

“1. It must be seen to have been reasonable and proper for the plaintiff to have sued the successful defendant.

2. The causes of action against two or more defendants need not be the same but they must be substantially connected or dependent the one on the other.

3. While it is essential to find that the plaintiff has acted reasonably and properly that alone is not sufficient. The court must find something in the conduct of the unsuccessful defendant which makes it a proper exercise of discretion.

4. Finally, in considering whether to make such an order, the court should, in the exercise of its discretion balance overall two considerations of policy: the first, that an unnecessary multiplicity of actions should not be forced on litigants, so that a plaintiff who acts reasonably in joining two or more defendants should not be penalised or lose the fruits of his victory in costs on the basis that he should have either elected or taken separate actions; secondly, that an unsuccessful defendant should not have to pay more than one set of costs merely because he is unsuccessful.”

82 The condition stated in principle 1 is clearly satisfied in this case. In the absence of knowledge of the contents of the referral document, it was clearly reasonable for the plaintiff to include Dr Willington and the FPA amongst the defendants to her action. It would have been imprudent for her not to do this.

83 Principle 3 does not suggest any particular level of fault by an unsuccessful defendant. An inadvertent omission may suffice, if it causes a plaintiff reasonably to join defendants she or he would not otherwise have joined.

84 The fourth principle is relevant to this case. Promptly after they received the referral document, the plaintiff’s solicitors announced that their client would discontinue the action against Dr Willington and the FPA. The costs covered by the Bullock order must be very small. It is not unfair to impose them on the unsuccessful defendants.

Disposition

85 The appeal should be dismissed with costs.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Higgins.

Associate:

Dated: 7 November 2002

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 64 OF 2001

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE

AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

BILL MOURATIDIS

FIRST APPELLANT

THE AUSTRALIAN CAPITAL TERRITORY

SECOND APPELLANT

AND:

DAVID ROSS BROWN AS APPOINTED REPRESENTATIVE OF THE ESTATE OF THE LATE AMANDA BROWN

RESPONDENT

JUDGE:	WILCOX, HIGGINS and GYLES JJ
DATE:	7 NOVEMBER 2002
PLACE:	CANBERRA

REASONS FOR JUDGMENT

GYLES J:

86 I have had the advantage of reading in draft the judgment of Wilcox and Higgins JJ, which relieves me of the necessity of explaining the background to the appeal and the basic facts. I can concentrate upon explaining my reasons for taking a different view as to the result of the appeal from that taken by Wilcox and Higgins JJ. I would allow the appeal. I begin by acknowledging the difficult task which confronted the judge of the Supreme Court in dealing so urgently, in harrowing circumstances, with a difficult case. Indeed, the circumstances cause me some disquiet.

87 As there is no issue as to vicarious liability, I will deal with the case of the first appellant, Dr Bill Mouratidis, and shall describe him as “the appellant”. He saw Amanda Brown (“the plaintiff”) twice, the last time on 13 December 1995. The appellant did not hear anything further about the situation of the plaintiff until after commencement of the proceedings in May 2001. An amended statement of claim was filed on 8 August 2001, and the appellant’s defence was filed on 10 August 2001. The statement of particulars dated 12 September 2001 filed by the plaintiff related to damages. The particulars of negligence in the amended statement of claim in relation to the appellant (in common with other defendants) were:

“(a) A failure to provide all adequate medical attention.

(b) A failure to provide all adequate medical treatment.

(d) A failure to ensure all necessary diagnostic tests and procedures were carried out.

(e) A failure to ensure that symptoms and signs displayed by the Plaintiff during her attendance were promptly acted upon.

(f) Failure to adequately carry out Fine Needle Aspiration.

(g) Failure to adequately carry out a sufficient number of Fine Needle Aspirations.

(h) Failure to carry out Fine Needle Aspiration from both lumps in the left breast.

(i) Failure to properly examine the fine needle aspirate taken from the Plaintiff’s left breast.

(j) Failure to recognise and identify lobular carcinoma cells from the aspirate.

(k) The Plaintiff repeats the particulars of negligence pleaded at paragraph 9(a) to (f):

9(a) Failure to diagnose or suspect the lumps in the Plaintiff’s left breast were lobular carcinomas.

(b) Failure to put in place proper and or adequate measures to enable an accurate diagnosis to be made of the lumps in the Plaintiff’s left breast.

(d) In the alternative, in the course of examining the Plaintiff, the Third Defendant failed to discover that the original diagnosis of benign cysts was incorrect and negligently treated the Plaintiff as a result of an unreasonably incorrect diagnosis.

(e) Failure to perform a mammogram.

(f) Failure to skilfully perform the ultrasound.”

88 On 28 August 2001 the hearing was fixed for 24 September 2001. At that time, counsel for the defendants indicated problems in being prepared for hearing, and complaint was made about the difficulty of ascertaining the real case which the plaintiff was to make from the broad particulars in the statement of claim. A direction was given that, within seven days, the plaintiff indicate to the defendant the issues that would be raised at the hearing. The matter was restored to the list on 14 September 2001 by the defendants, intending to apply for the hearing date to be vacated. In the meantime, correspondence had led to that application not being pursued.

89 On Monday, 17 September 2001, application was made to the trial judge for the taking of evidence urgently from the plaintiff in view of her rapidly deteriorating medical condition. Counsel for the plaintiff sought that the evidence be taken that day at the home of the plaintiff near Yass. Junior counsel for the defendant opposed that course. She was engaged in another proceeding that day. Senior counsel who had been briefed was from Melbourne, had not had an opportunity of preparing the matter, would find it difficult to be available at the home of the plaintiff that evening, and, even if available, would have little knowledge of the case. Counsel also raised problems in relation to supply of medical reports and particulars. During the course of argument, senior counsel for the plaintiff very firmly based his case upon the medical report of Professor Martin Tattersall dated 6 August 2001, which had been served, and, indeed, pinned himself to pars 3, 6 and 9 of it. Those paragraphs were the answers to particular questions asked of Professor Tattersall by the solicitors for the plaintiff. Professor Tattersall set out the assumptions that he had made for the purposes of expressing his opinion. For relevant purposes, it is sufficient to note that these assumptions relied only upon contemporaneous notes and reports and not upon any evidence of the plaintiff or her husband. The questions and answers referred to by senior counsel for the plaintiff were as follows:

“…

3.Q. Do I see any departure from the applicable standard of care by either of the first two defendants?

A. Yes. I believe Dr Mouratadis [sic] departed from the standard of care of a radiologist responding to a request which stated ‘Bilat. Mammogram. Bilat. Breast USS. Plus/minus fine needle biopsy if indicated, and included in the history 35 para 2, recently ceased lactation. Lump left areolar and lump left upper outer quadr (past history of thyroid cancer)’.

…

6.Q. What are my views concerning Dr Mouratadis’ failure to take a fine needle aspirate from the larger breast lump.

A. I believe a biopsy of the larger breast lump in August 1995 would more likely than not have documented lobular breast cancer.

…

9.Q. What chance did the plaintiff lose if there is a deviation from the standard of care between August 1995 and December 1995.

A. I believe that a diagnosis of lobular breast cancer in August 1995 would more likely than not have led to a mastectomy being recommended. I believe pathological examination of the breast would have shown invasive lobular breast cancer with foci of invasive lobular cancer in more than one site. There would likely have been metastatic spread to more than one axillary lymph gland, but likely less than 10. Adjuvant chemotherapy would have been recommended and endocrine treatment. The probability of survival at 10 years would have been about 50% or greater depending on the extent of axillary lymph gland metastasis in August or December 1995.”

90 In an affidavit dated 4 September 2001 the plaintiff claimed that the appellant did not feel or examine her breasts on either occasion he saw her. No reference was made to this in the Tattersall report or any other particulars, oral or written, so far as I can see. After hearing evidence from the plaintiff’s general practitioner, the trial judge ordered that evidence be taken that afternoon, at the plaintiff’s home near Yass. The hearing at Yass commenced at 6.02pm on that day. Senior counsel for the defendants had arrived. She detailed her difficulty in dealing with the matter on that evening, and repeated the concern held about particulars. Senior counsel for the plaintiff again pinned himself very firmly to the three identified questions and answers from Professor Tattersall. He also referred to the fact that the affidavit (presumably that of the plaintiff) had been served the day before, and I note that the copy of the affidavit of 4 September in the appeal book indeed bears a fax date “16 September”. The plaintiff was examined and cross-examined, and the hearing was completed at 7.25pm.

91 The hearing proper commenced on 24 September 2001. When the case commenced, senior counsel for the plaintiff informed his Honour that the plaintiff had been admitted to Canberra Hospital the day before, and that she would not be present during the currency of the case. It is fair to say that a reading of the transcript of the various directions hearings and of the trial indicate that senior counsel for the plaintiff lost no opportunity of impressing upon the Court and counsel for the defendants the urgency of the situation. Evidence proceeded until it closed at 5.40pm on 28 September. Closing addresses commenced just after 2pm on Saturday, 29 September 2001, and were completed at 7.15pm that day. After closing addresses, the trial judge ordered (inter alia) that there be judgment for the plaintiff against the appellants in the amount of $223,143.60 and judgment was duly entered at 8.35pm.

92 Paragraphs [2] and [128] of his Honours reasons for judgment were as follows:

“2. The hearing was expedited because the plaintiff’s condition was terminal and it was feared that her death was imminent. This not only meant that the case might have had to be decided without any evidence from her, but that the range of damages might have been severely curtailed by virtue of s 5 of the Law Reform (Miscellaneous Provisions) Act 1955. That section provides that where a cause of action of this kind survives for the benefit of a deceased person’s estate, the damages recoverable may not include components for various matters including pain and suffering, loss of her ability to provide domestic services including, presumably, caring for her children and loss of future earnings. Furthermore, she may have been denied the opportunity of knowing the outcome of the proceedings.

…

128. I might also mention that the terms of s 5 of the Law Reform (Miscellaneous Provisions) Act are likely to create a similar need for urgency in other cases. Any dying mother is likely to be anxious to ensure that her children have the benefit of damages reflecting due compensation for what she has suffered and for the care that she was and will be unable to give them. Yet to obtain such damages a plaintiff must not only commence proceedings but have the case completed and judgment entered prior to her death. It seems inappropriate for damages to be determined largely by reference to the plaintiff’s capacity to cling to life whilst her lawyers pursue expedition and relentlessly oppose any delay. Furthermore, such a course may involve considerable inconvenience for both parties and the court may be required to balance the risk that delay alone might defeat much of her claim against the risk that the defendant may suffer unfair prejudice if denied sufficient time to prepare his or her case. Important issues of principle arise in this area of the law and it is for the legislature to determine whether the section should be retained in its current form or amended to address these issues. However, I would hope that some means could be found of alleviating these problems.”

93 My disquiet is increased when, in the reasons for judgment delivered on 24 October 2001, a critical finding was that the appellant had failed to carry out a proper physical examination of the plaintiff’s left breast in both August and December, rejecting his evidence in favour of that of the plaintiff and her husband. As has been seen, that allegation did not form part of the particulars relied upon prior to trial, and was simply referred to in the course of a narrative of events, with no further elaboration, during the opening by counsel for the plaintiff. Resolution of this credit issue must have been complicated by the considerations noted by the judge in another connection:

“However I did not regard the absence of any direct evidence from the plaintiff on this issue as fatal to this aspect of her claim. In other circumstances it might have been appropriate to have inferred that any evidence from her on this issue would not have assisted her case. However, she was obviously gravely ill and I formed the impression that both Mr Purnell and Ms Morrish were concerned to limit their questioning of her in order to spare her unnecessary distress. In all the circumstances, I was not prepared to draw an inference against either party by reason of any failure to put any particular matter to her.”

94 There is no ground of appeal based upon the timing or manner of the trial. However, in my opinion, the pressures upon the judge, and counsel, were such as to justify careful scrutiny of the reasons for judgment.

95 Among the critical passages in the judgment were the following:

“31. However, I found the claim for a cause of action for negligence established. Whilst I had no reason to doubt that the third defendant was otherwise a responsible and conscientious medical practitioner, I was satisfied that he had failed to carry out a proper or adequate examination of the plaintiff’s left breast in August and December 1995. I was also satisfied that if he had done so he would have found a lump, or at least a discrete area of firm lumpy tissue in the upper left quadrant, and that he would, or should, have then performed a fine needle aspiration on that area. I found that if such a procedure had been properly performed it would probably have revealed the presence of lobular carcinoma and the treatment for that condition would have been provided much earlier than it was.

…

49. The evidence established, in my view, that a reasonable standard of care on the part of a person in the position of the third defendant would have involved the application of the so called “triple test” for any lump in the breast at least in the absence of any obviously benign explanation. The triple test consisted of a clinical examination, imaging by mammography or ultrasound, and fine needle aspiration or biopsy. I was satisfied that this standard required a person in the position of the third defendant to apply the triple test to both ‘lumps’ and not merely the one in the areola. I was also satisfied on the evidence that the lump or area of lumpiness in the left upper quadrant should have been regarded as the more suspicious of the two lumps. Consequently, I concluded that the third defendant would probably have carried out a fine needle aspiration on this lump or discrete area of lumpiness if he had discovered it, as he should have done, in August and/or December 1995, and that any failure to have performed such a procedure would have amounted to a further breach of the standard of care that he owed to the plaintiff.”

96 There is weight to the criticisms advanced by counsel for the appellant as to the acceptance of the evidence of the plaintiff, which was that her left breast was not physically examined or even touched by the appellant on either occasion. The normal procedures involved in the administration of an ultrasound and a fine needle biopsy or aspiration (“FNA”) make that conclusion unlikely. It is also unlikely that the appellant would not follow correct procedures on two occasions separated by some months, bearing in mind that he had trained personnel with him on each occasion. There are also contra-indications in the contemporaneous notes. Further, the appellant undoubtedly faced forensic difficulties in dealing with the issue of credit which arose. As I am satisfied that the finding against the appellant should not stand for other reasons, it is not necessary to resolve this issue. There is no doubt that the appellant was bound to examine the breasts of the plaintiff for the purposes of and as ancillary to carrying out the ultrasound and FNA – he accepted that himself. It is another thing to say that, independently of the procedures being carried out, an examination was required as a separate diagnostic exercise. It is possible that a difference between those two types of examination might explain some misunderstanding by the plaintiff.

97 My difficulty with the decision lies in two related aspects:

(1) The conclusion that proper physical examinations in August and December would have detected a condition of the upper outer quadrant of the left breast indicating the need for FNA regardless of the result of the ultrasound; and

(2) The conclusion that the appellant was bound by reason of the triple test to conduct such physical examinations for the purpose of deciding whether to FNA the upper outer quadrant of the left breast on each occasion of his own accord regardless of the result of the ultrasound.

98 A short summary of my reasons follows. The appellant was a physician in nuclear medicine and diagnostic ultrasound who, in 1995, worked in the Medical Imaging Department of the Canberra Hospital. His specialty of nuclear medicine has nothing to do with this case. Among his qualifications was a Diploma of Diagnostic Ultrasound. He is not a radiologist. He did not carry out mammograms, and the Canberra Hospital machine for that purpose was substandard. By August 1995 he had approximately ten years’ experience in administering ultrasounds. He was not a physician specialising in the diagnosis or treatment of cancer or breast cancer. He was not an oncologist. Most importantly, he did not have the general care and control of the plaintiff as a patient. The plaintiff was referred to him for a specialised service by a medical practitioner who did have care and control of the plaintiff as a patient. The appellant gave evidence that he regarded Dr Willington as the clinician when he first saw the plaintiff, and there is no acceptable evidence which casts doubt upon that view. The referral to him by Dr Willington was specific – the examination required was a bilateral breast ultrasound plus or minus fine needle biopsy if indicated. In other words, an ultrasound was compulsory and FNA discretionary. The ultrasound was obviously to take place first. The contribution which the appellant could make to diagnosis was his expertise in administering and interpreting an ultrasound, not his general clinical knowledge. There was nothing to indicate that his expertise in relation to palpation or physical examination of a breast was superior to or even equal to that of Dr Willington. The “if indicated” part of the referral would (at least primarily) mean if indicated by the ultrasound. If palpation of the breast had revealed the presence of a lesion such as to give rise to the necessity for a biopsy regardless of the result of an ultrasound, then Dr Willington would have been responsible for ordering it. The same applies to the December referral from Dr Tyson. The contemporaneous evidence is inconsistent with any such lesion being present upon examination in August or December. In each instance the instruction for an ultrasound was properly carried out and reported upon to the clinician. Neither ultrasound indicated any need for FNA of the upper left quadrant.

99 It is necessary to say something of ultrasound or sonography. It is a technique using sound waves to produce real time and film images of tissue. The technique was explained by the appellant as follows (in recounting what he says happened on 10 August):

“All right. Well, let’s go back to the bilateral breast ultrasound. Did you do that? --- The sonographer did the ultrasound and I checked her findings.

Were you in the room or not in the room when she did the ultrasound? --- Yes, I was.

You wasn’t? Where were you when the ultrasound was actually performed in real time? --- Well, Amanda Brown was lying in the bed. The sonographer was on the right hand side of the bed. I’m on the left hand side of the bed.

And were you – the bed – we heard that there’s a monitor while the ultrasound’s being conducted in real time? --- That’s right.

And what were you doing while the ultrasound process was going on? --- I was looking at the monitor and once the examination had finished I checked her findings and examined Mrs Brown’s breasts with the probe and with my hands simultaneously to make a direct correlation between what I was seeing on the screen and what I was feeling.

Okay. Well, let’s go from the moment that the sonographer, not you, starts the process. How does the process normally go? There’s a probe, and how is that – how is the ultrasound actually physically done? What happens? --- Well, we have a machine with a monitor, and from that machine emanates a cable which is attached to a probe, which is a rectangular substance which is then placed on the skin of a patient. One needs some gel applied to the skin to allow the sound to be transmitted into the body, otherwise the sound waves get bounced back and we can’t get any images. The patient lies on a bed and a systematic examination of the breast is performed, going through each quadrant in both transverse and longitudinal views including the axillary tail and also underneath the nipple, and this is repeated for the next breast.

Okay. Well, you said that the sonographer did the first part of the test? --- That’s right.

And then you took over. What did you personally do? --- I took the probe in my hand and placed it on Mrs Brown’s skin, take it off intermittently, put my hand on her breast to correspond with the image and see what I was feeling or what I was corresponding on the image. So basically what I was trying to do is correlate the palpable findings to the ultrasound image.”

100 It is also necessary to appreciate something of the role and limits of FNA. FNA is a form of biopsy whereby a fine steel needle is inserted into tissue to remove cells from the tissue for analysis. A syringe is used to collect the cells from the needle and spray them onto slides for analysis. The evidence of the appellant was that without what was described as “a focal lesion” FNA is not indicated. A focal lesion is a lesion which has well-defined margins, which is separate from the rest of the breast and easily discerned from the remainder of the breast. It was also described as a discrete lump or discrete mass. According to the appellant, in order for FNA to be effective, there has to be a target, and it is important that the target be differentiated from the cells around it. General lumpiness or tenderness, even if confirmed on palpation, would not lead to FNA unless there was ultrasonic or mammographic evidence to indicate the existence of a focal lesion. He described FNA without having a focal lesion as a target as rather akin to throwing a dart at a board wearing a blindfold. The appellant explained in evidence how, having identified a focal lesion, he would combine physical examination together with sonography to ensure that the needle went into the object area and stayed there during the manipulation which was part of the process. If the needle escapes from the object area, the samples will be confused.

101 At the trial, the appellant was able to use film of some of the images taken during the ultrasounds on each occasion to explain his findings, and was able to compare the ultrasounds one with the other. There was no allegation that there was anything negligent about the administration of the ultrasound or of the interpretation of the results of each of them. He was the witness with most experience in FNA. No other specialist in that field was called. It should be noted that, in addition to the appellant, a sonographer was present on both occasions and a cytologist was also present when the FNA was performed in December.

102 In cross-examination the appellant said:

“And you agree that as a clinician tenderness is an indicia for suspicion? --- For low suspicion for carcinoma.

For suspicion. You agree, don’t you? Can you answer the question? You agree with that as a proposition, don’t you? --- I agree that it is a suspicion for some form of benign, or possibly abnormal pathology.

Yes. And you, carrying out your duty diligently, would exclude that suspicion if ultrasound was negative by doing an aspiration or a biopsy on the relevant part, wouldn’t you? --- Not on a tender area, no.

I see? --- If there’s no lump there there’s no indication for a biopsy.

You know, don’t you, that lobular carcinoma can be multifocal? --- Yes.

And by definition of that multifocality it makes it more difficult than ductal carcinoma to detect? --- Correct.

You know also, don’t you, that a biopsy of an area that’s not a distinct lump but a discrete mass is a sign worthy of investigation to exclude multifocal carcinoma? --- If there was a discrete mass, yes.”

103 This passage refers to a problem, and, in my opinion, the root problem, in the present case. The form of cancer which the plaintiff had in her left breast was lobular cancer, which tends to be multi-focal with no discrete focal mass or lump. There is little dispute about the nature of lobular carcinoma, but a convenient explanation is by Professor Levi as follows:

“Are there any difficulties in diagnosis of lobular carcinoma? --- Yes, there are. It’s a rare tumour, but when it does develop it tends to infiltrate profusely through the breast so that a mass effect is much less likely to be apparent, and the clinical presentation would therefore be much more difficult because it would only generally appear as some degree of thickening, or firmness, of the breasts rather than an obvious lump. And that can make diagnosis very difficult. Quite often also as a result of the nature of the infiltration of the breast it doesn’t produce a mass effect on mammogram, and also it doesn’t produce microcalcification so that it can’t produce an appearance on a mammogram, or an ultrasound, that would make the suspicion of a diagnosis of breast cancer very likely.

Well, on top of the inherent difficulties of diagnosis, are there additional difficulties in relation to women who have been breast feeding? --- Yes, in general terms, because of the effect on the breast of lactation that it means that the glandular elements of the breast are more prominent, the breast tends to be firmer, and quite often lumpy as well, so that can quite easily mask the potential for something other than just the breast related to lactation, such as, for example, a breast cancer.

What about if a patient may have fibroadenosis? --- Well, fibroadenosis is a diagnosis which relates to increased fibrous tissue, and sort of glandular components, or enlargements within the gland which would again produce a generally lumpy appearance to the breast. So it could quite easily produce a picture that would be similar to a diffuse infiltration by something more sinister such as lobular carcinoma.”

104 There are other forms of biopsy apart from FNA, which are more invasive than FNA. The appellant was competent to perform core biopsy but any form of excision biopsy was a task for a surgeon. It was not alleged that the appellant was negligent in not undertaking a core biopsy.

105 It seems to me, with respect, that the finding of the trial judge that there was a significant abnormality in the left upper quadrant of the left breast on each occasion which should have led to FNA is contrary to the evidence of the treating medical personnel when properly understood. The most significant evidence was given by Dr Willington. Dr Willington had qualified in 1980 and commenced in general practice in late 1982 or early 1983. She had substantially practised in women’s health since commencing in general practice, and had had appointments at Warilla Women’s Health Centre near Wollongong, at the Shoalhaven Women’s Health Centre and at the Family Planning Clinic in the ACT. The clinical notes of the Family Planning Clinic for 10 August 1995 include an entry in her handwriting identifying “firmer lumpier tissue” in the indicated area on the upper left quadrant of the left breast. It is of note that Nurse Kippen, who conducted the initial examination, did not record any observation as to that area. The referral by Dr Willington to the Canberra Hospital (so far as relevant) was as follows:

“Examination Required:

Bilat Breast U-SS

Plus/minus fine needle biopsy if indicated.

History and PD

35 Para 2

Recently ceased lactation

Lump L areolar lumpy L upper outer quad

(Past history of thyroid Ca)”

After being taken to her referral, her evidence continued:

“What was your expectation in regard to those remaining tests? --- I was expecting that Mrs Brown would contact the hospital and make an appointment for the medical imaging department, that she’d be given an appointment, that she’d present and that in relation to the breast ultrasound that she would be – have an ultrasound scan which is a common procedure and that the radiologist would then make a judgement [sic] as to whether there was sufficient indication to do a fine needle biopsy at the same time. And the reason why it’s requested in this way plus minus fine needle biopsy if indicated is because if you don’t request it that way and the radiologist sees something that they would advise should be biopsied then it’s very inconvenient for the women, she has to come back and be returned and so this is a very typical proper way of ordering this test.

Did you have an expectation that a fine needle aspiration would be carried out on this occasion in light of your observations? --- I can’t remember.

Now, I think you’ve given some assistance in this regard, but on your notes you refer to firmer lumpier tissue, and similarly on your referral you refer to lumpy left upper outer quadrant. Is there any particular significance in relation to the use of the word lumpier or lumpy in those two documents? --- The significance I attach to this is that I make no documentation of having noticed a discrete or definable lump. It is a very common thing when examining breast tissue to have a kind of sense of altered texture or density and it can be diffuse and not necessarily obvious. And difficult to define whether in fact this is a lump or a change in density and so it would be my usual practice if actually identifying a defined lump to describe whether it was mobile or fixed or what size it was and so forth. And the fact that I haven’t done that in the notes, and the fact that I don’t describe it for the radiologist – you see, normally it would be a courteous and appropriate thing when referring to the radiologist to describe what the clinical findings are. So if sending someone away for a test and it’s a clear lump, you’d say this is a 2 centimetre by 3 centimetre or whatever it might be, lump. But because there’s no reference to that it leads me to be fairly confident that there was no definable lump. But lumpier texture in the breast.”

106 In cross-examination, Dr Willington gave the following evidence:

“MR PURNELL: And you as a careful diligent Family Planning doctor wanted a mammogram, an ultrasound and a fine needed [sic] biopsy if indicated in relation to the two areas that you’ve put on the request form? --- That’s correct.

Yes. And you know, don’t you, that lobular carcinoma is something that has to be excluded in relation to lumpy areas? --- Well, it’s always true that a lumpier area needs monitoring and investigation to confirm that it is not malignant.

Yes. And you know that lobular carcinoma can be multi-focal? --- It certainly can.

And a lumpy area is just the sort of thing that you would worry about in terms of multi-focal lobular cancer. In terms of being excluded, I mean? --- The vast majority of lumpier areas are benign.

Yes, but you know, and that’s why you referred her to somebody like Mouratidis, that this has to be excluded for you to carry out your duties acting diligently with these – the triple test be gone through. That’s the case isn’t it? --- The triple test was not part – there was no guideline in place at the time.

You’ve indicated the triple test, the examination required in essence haven’t you? --- There were no guidelines in place at the time of my examination. It was my judgement to make those requests.

Yes. Well, the request was that you were concerned about those two areas, and you thought that if there was an indication, there should be a fine needle biopsy as you’ve written. Agreed? --- That’s correct. If there was an indication there should be a fine needle biopsy.”

107 Dr Willington had earlier given the following evidence:

“Doctor, in relation to your finding of the sign of firmer lumpier tissue, what significance, if any, would you attribute to this? --- I can only go on the notes because I can’t recall this consultation at all, but this patient didn’t complain of any symptoms. But during the course of the discussion, or maybe on questioning, it was revealed that she had been recently lactating. I don’t know how recently but it wouldn’t have been months before, we wouldn’t have called it recent, so within the last several weeks she had weaned from breastfeeding – weaned a baby from breastfeeding so I am likely to have associated it with recent lactation.

On reflection, in relation to the notes that you have there, was there anything worrying in the presentation Mrs Brown has recorded? --- Well, it’s my practice to worry, it’s my training to worry, and being of cautious temperament – although it wouldn’t have occurred to me that there was anything sinister about this presentation at all, you know, to be thorough we requested tests, so it wasn’t really because – I can’t imagine that there was a great feeling of concern, but there was a feeling of thorough investigation.”

108 Dr Willington did not conclude from her examination that a biopsy of any sort was mandatory. She was a well-qualified and experienced practitioner in the relevant field, and there was nothing to indicate that, leaving aside his ability in relation to ultrasounds, the appellant could add anything to the assessment of the necessity for biopsy. She pointed out in evidence that she had not made a PD (provisional diagnosis) of cancer.

109 The next examination was by Dr Tyson, who also gave evidence. She had completed her training in 1986, and in 1995 was working at the Family Planning Clinic as well as a clinic at the Canberra Hospital. For the moment, I leave the lumps in the area of the nipple out of consideration. Her clinical notes do not identify the upper outer left quadrant at all. In the referral she said “general tenderness, especially upper region”. The clinical notes as explained by the witness included the following: “P (stands for plan), repeat ultrasound plus or minus FNA”. In relation to that entry, she gave the following evidence:

“What does the plus or minus signify? --- It may signify that I would wait till the report came back and then decide whether or not a fine needle aspiration would be appropriate, or it may indicate that on the basis of the ultrasound report, reporting a fine needle aspiration would be – may not be necessary.”

The referral was for a repeat ultrasound with no reference to FNA. She was not challenged in cross-examination to suggest any failure in her examination or referral. Her evidence establishes that she did not regard the general tenderness in the upper region as warranting any biopsy without further ultrasound indication. Her evidence also makes clear that she was the clinician involved and contemplated making the decision about the need for biopsy when she had considered the ultrasound report. Most importantly, for present purposes, her clinical notes are quite inconsistent with there being any discrete lump or even lumpy area discernible on palpation on physical examination of the upper outer quadrant of the left breast.

110 Thus, neither clinician who undoubtedly examined the relevant area of the breast identified any focal lesion upon physical examination such as to require biopsy. Neither was challenged on credit in cross-examination. It is also striking that there were two comprehensive ultrasounds by the appellant, not alleged to be negligent, which did not give any indication of the existence of any focal lesion in the upper outer quadrant. Film of those ultrasounds remains in existence and was demonstrated in evidence, although it does not completely replicate all of the real time images.

111 The trial judge apparently accepted evidence from the plaintiff’s husband that the lump got bigger and increased most noticeably between December 1995 and 25 January 1996, when the plaintiff was seen by a general practitioner, Dr Lawrence. He referred the plaintiff to Dr Dyason, a consultant general surgeon. The letter of referral from Dr Lawrence was as follows (omitting formal parts):

“Many thanks for seeing (urgently) this young lady, a mother of two, with a past history of (1986) of carcinoma of the thyroid and a discrete breast lump on the left.

In November 1995 Amanda noted a discrete firm area of tissue in the lateralsuperolateral left breast which in [sic] non-tender and appears to be enlarging.

Amanda saw another local medical officer and subsequently had a FNA performed in December of 1995, the cytology of which was reported as benign.

Examination reveals a discrete firm/hard minimally mobile, non-tender three by four centimetre mass lesion in the left breast without axillary, supraclavicular or other lymphadenopathy.

There is a soft nodule (?) cyst in relation to the left areolae.

Her aspiration cytologist recommended that she have a mammogram “to be sure”.

Despite the negative FNA the nature of the lesion, the lack of change or fibroadenosis in both breasts suggests further review with a view to lumpectomy.

Looking forward to your early assessment.”

Lumpectomy is a surgical excision biopsy.

112 Dr Dyason saw the patient on 31 January 1996 and, according to a later report:

“On examination, there was a defuse lumpiness in the upper outer quadrant of the left breast. There was a solitary nodule in the areola of the breast which looked to be an epidermoid cyst. I arranged for her to have an ultrasound and x-ray of both breasts, and I enclose a copy of the report on the 19/2/96. The report the suggested a diagnosis of fibroadenosis. Clinically radiologically and FNA pathology suggested a benign diagnosis for this left breast lump.”

113 Dr Dyason gave evidence and interpreted his clinical notes taken on first examination on 31 January. He noted lumpy areas on the upper outer quadrant, a small lumpy area immediate to the nipple and a cyst on one side of the areola of the nipple. In evidence, he said:

“Well, what did you notice on the examination? --- There was an obvious cyst that could be seen. There was nothing else to be seen. And on palpation there was thickening in the upper outer quadrant of the breast, and there was thickening in the immediate problem just above the nipple.

And what did you – what diagnosis did you make on the basis of that consultation? You’ve written there fibroadenosis? --- I obviously thought it was benign.”

He went on to explain fibroadenosis in the following way:

“MS MORRISH: You’ve got the words fibroadenosis there. What does that mean, insofar as what diagnosis you may or may not have made on that day? --- That’s a benign hormonally induced condition of the breast which produces breast cysts, and fibrosis, in the breast tissue. It’s cyclical, it’s governed by varying hormones, and it’s very common in this age group.

Well, what is fibroadenosis? --- The word?

Yes, what does it mean? --- Fibrosis means fibrous tissue.

Yes? --- Adenosis means proliferation of the glandular tissue of the breast.

And if a patient does have fibroadenosis, what are the physical manifestations? --- Symptomatically they have tender breasts, frequently the breasts are lumpy to touch, and sometimes there are breast cysts.”

He explained the difficulty of diagnosis of lobular carcinoma in this way:

“And what makes it difficult to diagnose? --- It may mimic benign disease, it may mimic fibrocystic disease, it may develop for a long period of time without a palpable lump, it may not show up on ultrasound or mammography.”

114 His contemporaneous report of 20 February was as follows (omitting formal parts):

“Thanks for asking me to assess this patient with a lumpy area in the upper outer quadrant of her left breast. She has had x-rays of the breast, ultrasound and FNA from the suspicious area. She also had a small benign epidermoid cyst of the areola of her left breast.

Clinically the lumpy area in the left breast is fibroadenosis and this is supported by all the methods we have available to make a diagnosis, short of doing biopsy. As the patient is still anxious about the lump, biopsy of the lump has been arranged at Calvary Hospital.”

115 The report from Canberra Imaging concerning both mammography and sonography (ultrasound) on 19 February was as follows (omitting formal parts):

“BILATERAL MAMMOGRAPHY: Dense nodular fibrocystic type parenchyma is seen bilaterally. The pattern is symmetrical. No discrete mass is evident. The known calcifications are seen bilaterally. There is no mammographic evidence of malignancy.

JC/MP/dh

DR JOHN CONNORS FRACR

DR MARK PIERCE FRACR

BILATERAL BREAST SONOGRAPHY: The breast parenchyma is sonographically dense consistent with the mammographically evident fibrocystic change. This is most marked at the superolateral quadrant of the left breast. No discrete solid or cystic mass is seen. There are no sinister features.

This however should not deter further evaluation of any clinically suspicious masses.

JC/dh

Thank you for this referral.

DR JOHN CONNORS FRACR”

These reports are similar in form and conclusions to those of the appellant, the substance of which were as follows:

“ULTRASOUND EXAMINATION – BREAST

Thank you for referring this patient with palpable left breast lump following breast feeding.

There is a cluster of mildly dilated lactiferous ducts lateral to the aerola in the left breast. The appearance of the ducts corresponds to the palpable findings. No suspicious lesions were identified. Medial to the left aerola there is a mildly dilated lactiferous duct which is slightly thick walled. This may be associated with possible low grade inflammation but in view of the lack of symptoms fine needle aspiration was not performed. The remainder of the left breast and right breast appear normal apart from mild prominence of the lactiferous ducts.

A follow up study in 3 months is recommended to help confirm the resolution of the mildly dilated lactiferous ducts. /dl

Title: BREAST ULTRASOUND Date seen: 14/08/95 DR B MOURATIDIS”

“ULTRASOUND EXAMINATION – BREAST

Thank you for referring this patient with palpable left breast lump. There is a small subcutaneous nodule in the left breast situated in the 3 o’clock position along the areolar margin. The appearances suggest a benign process such as lumph node or cyst and FNA was performed which yielded a small amount of clear fluid which was sent to cytology.

Breast parenchyma in both breasts is otherwise normal. No suspicious features were noted. Mammography is suggested to further exclude malignancy /mm

Title: BREAST ULTRASOUND Date seen: 13/12/95 DR B MOURATIDIS”

All reports were as to the results of sonography and no more.

116 The plaintiff was seen by Dr Lawrence on 22 February and 27 February. The lesion by that time was approximately four by five centimetres in size. It had thus grown significantly in one month. This growth was described by one of the witnesses as exponential. On this evidence, there was a very significant increase in size between December and February. Dr Lawrence discussed the lesion with Dr Dyason, and it was agreed that proceeding to lumpectomy/biopsy was the most appropriate course, and this was undertaken on 28 February.

117 Dr Lawrence gave evidence. He was taken through his contemporaneous clinical notes and this added little to the significance of his first observations as recorded in the referral set out above, but he was able to give further elucidation concerning a consultation on 20 February. Part of his evidence as to this occasion is as follows:

“And the next heading item is? --- I’ve simply written down that I’m concerned, hence plus plus, and I’ve indicated and the quote there is that I’m not 100% sure from the patient’s point of view, and I’ve explained this to her at the time, that we know precisely what’s going on. In other words, the negative mammogram and negative ultrasound in themselves cannot be taken as evidence that there’s no pathological process.

Well, what do you mean by that? --- What I would have explained to the patient at the time is that the finding of such a change in the breast and in the presence of a negative mammogram and a negative ultrasound should not deter one from continuing to investigate.

By what method? --- Well, the next most logical method is either a biopsy of some form and there are a variety of methods, technical methods, for approaching that, or some sort of excision procedure which would either involve a lumpectomy or something more grand.”

Later, he said:

“And so far as Dr Dyason was concerned, when you put down that you’re concerned and you’ve queried what was happening, did you contact Dr Dyason? --- For your Honour, I should explain. The patient had in fact seen Dr Dyason on the 19^th which was the day before and she’d returned to me with the news that he had felt this was likely to be a benign process of no concern, based on whatever evidence he had before him. I wasn’t as convinced, and remained concerned that this was a significant or potentially significant problem, and I rang him whilst the patient was in the rooms to express my concern, and I remember the conversation quite clearly, he reaffirmed his – what he felt was his clinical constraint, and I suggested to him that I felt this was a pathological process. He asked me if the patient was concerned and I said not so much as that I was concerned, and he then agreed to proceed to an excision biopsy.”

118 One point to be added to the evidence of his examination of 27 February is that he noticed deforming or dimpling apparently for the first time, which he said showed that the lesion was rapidly expanding. I should note that Dr Lawrence obviously made an error in saying that on 1 February he reviewed the mammogram and ultrasound results he had ordered. They were not done until 19 February. Indeed, he did not order the mammogram and ultrasound but, rather, Dr Dyason did. This mistake was repeated by his Honour.

119 The report by ACT Pathology in relation to the specimen obtained by biopsy was as follows (omitting formal parts):

“Collection Date 28-Feb-1996 Lab Episode No. TO148396 (I)

Specimen Type TISSUE

NATURE OF SPECIMEN:

LEFT BREAST BIOPSY

HISTORY:

Left Breast Biopsy.

MACROSCOPIC:

“LEFT BREAST BIOPSY”

The specimen is not oriented, it consists of an ovoid mass measuring 41 x 32 x 19 mm. The consistency is firm to hard with a particularly hard central area. The outside was painted with blue dye. On sectioning the lesion has a solid appearance with an homogenous white to yellow cut surface.

MICROSCOPIC:

Sections show extensive involvement of most of the breast lump by multifocal invasive lobular carcinoma. This is associated with extensive areas of lobular carcinoma in situ.

Invasive and in-situ lobular carcinoma are present at some of the diathermied surgical margins.

DIAGNOSIS:

EXTENSIVE INVASIVE AND IN-SITU LOBULAR CARCINOMA, EXCISION INCOMPLETE, LEFT BREAST LUMPECTOMY.

Reported by Dr G BENNETT

Dr P WHITING”

(emphasis added)

120 Modified radical mastectomy was carried out by Dr Dyason on 7 March 1996. Part of the pathology report as to the tissue taken was as follows:

“MICROSCOPIC:

A: Sections from around the surgical cavity on all aspects show EXTENSIVE RESIDUAL MULTIFOCAL LOBULAR CARCINOMA with extensive areas of lobular carcinoma in-situ. This involves essentially all of the upper and lower outer quadrants.

Tumour is present in lymphatic spaces.

The separate subareolar nodule described macroscopically is also a focus of invasive lobular carcinoma. An adjacent section through the nipple shows another small focus of invasive lobular carcinoma.

The deep surgical margin is clear of tumour.

The breast tissue from the upper and lower quadrants show areas of benign fibrocystic disease, and the presence of some lobules showing residual lactational change.

A total of thirty four axillary lymph nodes were found, and of these, thirty (including the apical node) show metastatic carcinoma. Many of the nodes involved are completely replaced by tumour, and extension into perinodal fat is present.

B: A total of six lymph nodes are present in the tissue removed from the chest wall. ALL six show metastatic carcinoma.” (emphasis added)

121 It will be observed from the pathology reports in February and March that there was a sub-areola nodule which was the focus of invasive lobular carcinoma, with an adjacent section showing another small focus of the same. The sub-areola and adjacent area was, no doubt, very close to the area investigated by FNA by the appellant in December without obtaining any evidence of carcinoma. It is also clear that the main area of lobular carcinoma was multi-focal.

122 In short, it was not until the observations of Dr Lawrence on 26 February as to the growth in the lump that the decision was made to undertake a biopsy. Up until then, three general practitioners, one consultant general surgeon and an unknown number of doctors involved in the February mammogram and ultrasound had examined the plaintiff.

123 In my opinion, the inconsistency between the recorded observations of Drs Willington and Tyson on the one hand, and Dr Lawrence, on the other, is most likely to be explained by the cancer growing exponentially in size after the examination in December. It is also noteworthy that, notwithstanding Dr Lawrence’s observations, Dr Dyason did not notice anything upon physical examination which caused him to do other than refer the patient for mammography and ultrasound. Although, as the judge noted, there may have been some misunderstanding as to the site of the December FNA, if physical examination and palpation had demanded some form of biopsy – whether surgical or otherwise – without the necessity for mammography or ultrasound investigation, the consultant surgeon should have recognised the need for it.

124 It is also noteworthy that the results of the February mammography and ultrasound were quite consistent with the results obtained by the appellant in August and December, notwithstanding that by then the lesion had grown significantly. The Canberra Imaging report of those procedures does not refer to any clinical findings upon physical examination, apart from the tests undertaken. As with the appellant’s reports, it was limited to reporting upon the result of the specific procedures undertaken. There is no evidence that the Canberra Imaging practitioners concerned ordered FNA or any form of biopsy, or contacted either Dr Lawrence or Dr Dyason and informed him of any clinical findings from physical examination, notwithstanding that the evidence of Dr Lawrence, the plaintiff and her husband as to the size of the lesion by then would indicate that it would have been obvious on clinical examination. This contemporaneous evidence of what was done (or not done) by practitioners in the appellant’s field is impossible to reconcile with the basis for the finding against the appellant.

125 The other contemporaneous evidence to be considered was that of the husband of the plaintiff. In relation to this, his Honour said:

“33. Even in the absence of any supporting evidence, I would have been satisfied to the requisite standard of the accuracy of Mr Brown’s evidence that the both the lump in the areola and the lump in the upper left quadrant of the breast remained in situ throughout the period of approximately seven months between the time that he and his wife noticed them, and the time of the excision of the latter lump on 23 February 1996. His evidence as to the continued presence of the lump in the upper left quadrant was, however, generally consistent with the observations Dr Willington made on 14 August 1995 of an area of “firmer, lumpier tissue” in that area, Dr Lawrence’s observations on 25 January and 20 February 1996 of a large lesion in that area and the excision on 28 February 1996 of a large ovoid mass from that area.”

126 If what his Honour found was that the same area of the upper outer quadrant of the left breast had attracted attention from August to February, there could be no criticism. If his Honour was intending to find, based upon the evidence of Mr Brown, that the area presented clinically in the same way in February 1996 as it had in August 1995 to a medical practitioner upon palpation, then, in my opinion, such lay evidence, given six years after the event, in the circumstances pertaining, is a wholly inadequate foundation for such a finding. It will also be recalled that the husband had said that the lump had been growing rapidly between December and the examination by Dr Lawrence in late January. It is known, from Dr Lawrence’s measurements, that it continued to grow appreciably up to his examination on 27 February.

127 Counsel for the plaintiff stressed the advantage which the trial judge had in assessing the evidence, particularly in the case of factual conflict involving witnesses who gave evidence, and cited many established authorities for that submission, culminating in Rosenberg v Percival (2001) 205 CLR 434. In my opinion, however, the body of contemporaneous evidence, mostly recorded as part of a system at a time before any reason to distort the facts had appeared, together with the virtually undisputed evidence as to the nature of lobular cancer, sonography and biopsy, is so powerful as to require cogent reasons for departing from it. It seems to me that the cumulative effect of this evidence was not appreciated or adequately considered by the trial judge and was, in some respects at least, misunderstood. It was not sufficient to simply accept the evidence of the plaintiff and her husband as to the precise state of the plaintiff’s left breast upon palpation at particular times, given both the lapse of time between the events and the evidence, and the harrowing circumstances under which it was given, without carefully weighing it against the body of contemporaneous evidence to the contrary (State Rail Authority v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at [62]-[64], [93]-[94], [154]-[155]; Elliott v Kodak Australia Pty Ltd [2001] FCA 1804 at [31]). After all, the critical question was how the breast would have presented to a medical practitioner in August and December, exercising the care and skill of the ordinary practitioner in the field. The best evidence of that is what happened at the time. To deduce from the fact that a series of apparently qualified and competent practitioners did not detect a condition giving rise to such a level of clinical suspicion as to warrant biopsy forthwith that such a condition would not have been detected by the appellant is not to reintroduce the Bolam principle by the back door, but rather to give proper weight to the actual circumstances(Rogers v Whitaker (1992) 175 CLR 479 at 483, 487-487; Naxakis v Western General Hospital (1999) 197 CLR 269 at [18]-[21], [47], [81]; Rosenberg v Percival at [7], [63], [67]-[68], [219]).

128 I now come to those who expressed opinions about what the appellant should or should not have done. Principal amongst them was Professor Tattersall. I have set out the relevant parts of the report of his which was the foundation of the case particularised on behalf of the plaintiff. One of the difficulties in dealing with his evidence, and this class of evidence as a whole, is that objection was taken to the admission of much of it, but, because of the insistent pressures of time, the objections were not ruled upon when they were taken and, in the event, were, with a few exceptions, never ruled upon. Counsel for the appellant maintains the objections and submits that the failure to deal with them flawed the conduct of the case. There were two main strands to the objections. The first was that experts were permitted to express opinions outside their respective fields of expertise and, in particular, in relation to practice as to sonography, mammography, cytology and biopsy. The second was that they were permitted to give evidence as to the existence or non-existence of facts based on the observations apparently made or inferences apparently drawn by others as to, for example, whether, as a matter of fact, there was a discrete lump in the upper outer quadrant instead of an area of lumpiness, and whether a lump in that area would have been palpable in either or both August or December 1995. It was submitted that the admission of this evidence contravenes ss 59, 79 and 56(2) of the Evidence Act 1995 (Cth). The particular objections are identified (at least by category) in the amended grounds of appeal and supplementary submissions.

129 In my opinion, there was a basic flaw in the manner in which much of the expert evidence was led and then utilised on the most critical area of the case so far as the appellant was concerned. This is illustrated by the first report of Dr Tattersall and finds its way through much of the expert evidence relied upon on behalf of the plaintiff. The expert was invited to adopt a view as to the meaning of clinical notes and referral letters of others (in particular, by and from Dr Willington and Dr Tyson) to draw a conclusion as to what the underlying condition of the breast actually was based upon that meaning, then add to that conclusion an interpretation of later reported observations of others so as to infer (as a fact) what the actual clinical presentation of the left breast had been in August and December, and, on the basis of that inferred fact, to express opinions as to what the appellant should or should not have done.

130 The question was often put to the expert as to what the referring doctor would have expected of the appellant, based upon the notes of the referring doctor but going beyond the actual terms of the referral. In my opinion, that evidence is inadmissible. This is not to suggest that it would never be admissible for one medical practitioner to give evidence about the notes of another – the translation and explanation of technical terms might be a good example. It may also be admissible for an expert in an area to explain (for example) what procedure is necessarily involved in conducting an ultrasound. The disputed evidence goes further and is not given by such an expert. The inappropriateness of the process is illustrated in the present case because the clinicians who made the referrals (and contributed to the clinical notes) gave evidence contrary to the inferences drawn by Professor Tattersall, amongst others.

131 It is accepted on all hands that biopsy (by whatever means) would not be indicated without signs justifying it based upon clinical observation, mammography or ultrasound evidence. It is also agreed on all hands that the mere presence of lumpiness in a breast would not always indicate the need for biopsy, regardless of the result of mammography or ultrasound. Whether the signs are of that order is a matter for the clinician conducting the examination. The mere fact that mammography or sonography is ordered is no indicator that biopsy will be necessary if those techniques show no need for it. Professor Tattersall (and others) proceeded on the basis that Drs Willington and Tyson had, because of their reference to the upper outer quadrant of the left breast, made a clinical decision that their observation of it was of such suspicion of cancer that biopsy was required regardless of the result of the ultrasound examination. Whilst this may have been acceptable as an assumption, it was improperly treated as an inferred fact. The evidence of Drs Willington and Tyson is, in the event, to the contrary of the inference drawn or assumption made.

132 Having read the evidence of Professor Tattersall, in my opinion, there is little admissible that he could directly say about the conduct of the appellant. He was an oncologist – a physician whose field was the treatment of cancer once diagnosed, although, obviously, he had both knowledge and experience in relation to diagnosis. He was not expert in the practice of FNA, ultrasound imaging, cytology or surgery. This would not necessarily mean that he was not qualified to express an opinion. It is reason for caution as to whether an opinion is truly within his field of expertise.

133 The net effect of his evidence was that:

(1) The appellant should have found the same signs on physical examination as did the referring general practitioners;

(2) That being so, he should have done an FNA on the upper outer quadrant of the left breast in both August and December regardless of the lack of sonographic evidence of a focal lesion;

(3) If he had done so, it is more likely than not that he would have discovered the cancerous cells.

These conclusions are either the result of a process of deduction rather than a matter of expert opinion, or are beyond the professional competence of the witness, or both. It is also, as I have said, contrary to the evidence of Dr Willington and is not consistent with the evidence of Dr Tyson. It is also worth noting that Professor Tattersall agrees that lobular cancer is relatively rare, is multi-focal, is difficult to distinguish from other common and benign conditions, and is likely to be well-established before any focal lesion or mass is evident. However, he does not support a biopsy every time that any area of lumpiness appears in a breast. An example of the problem posed by the manner in which the evidence was led is as follows:

“Knowing what you know, from the history of this matter, by the observations you’ve made of the clinical notes, and what you know from the examinations of Dr Willington, the nurse, and Dr Tyson, is it likely, first of all – this is the first question – that as at 14^th August 1995, there would be no indicia of lumpy – firm lumpy tissue in the upper outer quadrant? --- My classical education is inadequate. Indicia?

All right. Is it likely that you would be able as a clinician to find, if you’d done your job properly or at all, firm lumpy tissue in the upper outer quadrant on 14 August? --- Yes, I believe there would have been an abnormality present in that site.

And ignoring what you know after - - - ? --- Yes.

- - - 13 December --- Yes.

Putting together what you know from these two referrals, is it your opinion that a clinician doing his or her job properly would be able to find firmer lumpier tissue in the upper outer quadrant on 14 August ’95? --- I believe so. 14 August ’95 or 14 December ’95?

14 August ’95, first of all? --- Right.

And on the 14 December ’95, a clinician doing his or her job would be able to find those two lumps, first of all the lump at 3 o’clock and then the upper outer quadrant firmer tissue area? --- Particularly when this person has access to the previous referral, I believe that to be the case.

In relation to both areas? --- Yes.

Now, what is a person in your opinion in the position of Dr Mouratidis supposed to do with a lump that is suspicious and is not diagnosed as benign on presentation first of all on 14 August ’95? --- Confirm that the lump is present, and if it’s present to acknowledge that an explanation for its presence has not been reached.

And you? --- I would, if I’d written that referral, I would have expected that to happen.”

134 The other medical specialist called on behalf of the plaintiff was Dr Sullivan, who described herself as a medical oncologist. She has a similar field of specialty to that of Professor Tattersall, and said she had worked with him since 1978 and had worked with him as a medical oncologist since 1983. Examples of the same problem in her evidence were as follows:

“May the witness be shown Exhibit E, your Honour? Now, just going to the two referrals that are shown in that booklet, that’s the one from Dr Willington of 10 August, and the one from Dr Tyson of 7 December? --- Yes.

Just looking at what’s recorded there in relation to the left breast, would you expect taking those two referrals into account only, that on 14 August 1995 that the lump at 3 o’clock would not be able to be found by a competent clinician? --- No. The request tells us about a lump at 3 o’clock on both occasions, 4 months apart.

…

If you take the full history that you are aware of from the volumes, and what you’ve read, is it – does that make it more or less likely that as at 14 August there would have been available to be found by a competent clinician the lump at 3 o’clock in the upper outer quadrant diagnosed as the least firm lumpy tissue? --- It would make it more likely.

And is that the case, as well, in relation to the examination on 13 December 1995? --- The examination on the 13^th – the request was on the - - -

On the 7^th? --- The 7^th. So the examination by Dr Tyson.

No, the examination by - - - ? --- Well, when the ultrasound was done.

- - - Dr Mouratidis on the 13^th having first of all had those two referrals? --- They would have more likely been present, the lumps. Most likely.

…

With the presentation of the referral from Dr Willington would you have expected a person in the position of Dr Mouratidis on 14 August ’95 to have carried out a fine needed [sic] biopsy? --- I would have done. I would have expected him to carry out fine needle biopsy.

And of both lumps? --- Certainly both lumps.

And on 13 December ’95 would you have expected Dr Mouratidis to have biopsied the lump at 3 and the upper outer quadrant? --- Yes, I would have done.

The lumps that were seen by Dr Tyson and Dr Willington at their various times, were they consistent with fibroadenosis? --- Those lumps – I don’t think they were consistent with fibroadenosis.

What do you say? --- About those lumps?

Yes? --- I think those lumps were unusual. I think that they probably were certainly puzzling. They weren’t typical of – those particular lumps weren’t typical. They were seen to be benign looking by at least two people who examined the breast. However, there was no good explanation for them, and as there was no good explanation I believe they should have been biopsied. I think they may have distracted from the really suspicious area which was the left upper outer quadrant. And I think that if you were going to biopsy any area you may well have steered clear of the more benign looking lumps at the areola and biopsied the left outer quadrant.

135 There is one other significant part of the evidence of Dr Sullivan to which I should refer. In her report prior to giving evidence, after referring to the examination at the Family Planning Clinic in August and the form of the referral, she expressed her own opinion in the following way:

“Strictly, a “Fine Needle Biopsy” should have been requested but I believe, Dr Willington was giving the radiologist the opportunity to omit the biopsy if a clearly benign process could be demonstrated radiologically to explain the palpable abnormalities. Such abnormalities might be a simple benign looking cyst or sometimes a fibroademona. Clinically, the palpable upper outer quadrant abnormality in the left breast was not consistent with either of these diagnoses but the left areolar findings may have been. Hence, I believe a Fine Needle Biopsy of both abnormal areas should have been simply requested. I believe a radiologist should have drawn these same conclusions regarding the “fine needle biopsy if indicated” request.”

Later, after referring to the result of the ultrasound, she said:

“Whether Amanda’s breasts were examined by the Radiologist is problematic. The use of ultrasound implies a degree of examination certainly via the ultrasound probe which is run over the skin of the breast but often also by direct palpation so that the probe can be appropriately applied. This may have been done by either the Radiographer or the Radiologist. I believe that it is the Radiologist’s responsibility to see that the ultrasound probe has been appropriately directed.

Given that the Triple Test (palpation, imaging and biopsy) is considered mandatory for investigation of suspicious breast lumps, a Fine Needle Biopsy should have been performed. The radiologist, Dr Mouratidis, should have performed the biopsy. He might not have considered the breast findings suspicious himself if, indeed, he had examined the breasts, but the initial Doctor’s findings and request appear to have been ignored.”

136 In dealing with the December examination at the Family Planning Clinic, and the further referral, she said:

“The initially palpated left areolar lump was now larger measuring the diameter of 2 peas rather than one and there was a new lump. No mention was made of the left upper outer quadrant although tenderness was noted on the imaging request form.”

137 Then, after referring to the ultimate surgery, she said:

“Invasive lobular carcinoma is the second most common carcinoma of the breast after invasive ductal carcinoma which would account for the majority of breast cancers. As a pathological subtype, it carries a similar prognosis to ductal carcinoma. Prior to biopsy, it can be difficult to diagnose as malignancy as it is often less well-defined by palpation and not easily seen on mammogram or ultrasound. This underlines the importance of biopsy as part of the “triple test” previously referred to when there is a suspicious lesion in the breast. There were three palpably abnormal areas in Amanda’s left breast and each area was subsequently shown to contain invasive carcinoma. If the larger, more dominant abnormal area in the upper outer quadrant of the left breast had been fine needle or core biopsied in August 1995, I believe that, more likely than not, an accurate diagnosis would have been reached.

Similarly, if each of the abnormal areas had been fine needle or core biopsied in December 1995, I believe that, more likely than not, an accurate diagnosis would have been reached.”

138 She was asked about her report, and some of the questions were as follows:

“ “Strictly a fine needle biopsy should have been requested”. By that are you talking about fine needle biopsy in August or December? --- In August.

But I believe Dr Willington was giving the radiologist the opportunity to omit the biopsy if a clearly benign process could be demonstrated radiologically? --- Yes.

So you accept that if the person who is performing the ultrasound and the examination, having done that, is not suspicious, then they’re – according to that request, there is no need to go on to do fine needle biopsy? --- No. No, I don’t accept that. I think that if there was no explanation for the palpable lump in the upper outer quadrant then the fine needle biopsy should have been done and from my reading of the ultrasound report there was no explanation for it. What – by – what I mean by that is sometimes the radiologist or ultrasonographer can feel very confident about the diagnosis they’re making. An example might be a simple cyst, so a thin wall, simple cyst that has no – no suspicious features. But if you don’t see anything, then I – I don’t believe you can explain a lump in the upper outer quadrant. And that’s why we do the fine needle aspiration biopsy.

Do you accept that the most – that the best way to actually analyse what a tumour is to get a bit of it and look under a microscope? --- Yes, I do.

Do you accept that although mammography in a person of Amanda Brown’s age group and without a family history of breast cancer, that although mammography is not contra-indicated it’s often not done because women in such a situation have dense breasts? --- I wouldn’t accept that. I would say for a woman over the age of 35 if you have a suspicious lesion in the breast that you do – you request a mammogram accepting that it doesn’t always pick up a lesion but knowing that it frequently will. But that you also request an ultrasound because of that woman’s youth and the probability of dense breasts. So I think it would be very common practice to request mammography and ultrasound.

You say in about the middle of that italicised, or perhaps one third to the bottom, “whether Amanda’s breasts were examined by the radiologist is problematic”. If you assume that there was in fact a clinical examination, does that affect the opinion that you express? --- It ultimately doesn’t change it. For me it was a problem that if the breasts weren’t examined how would you know where to do the fine needle aspiration biopsy, accepting that the imaging isn’t always going to give you the answer? So if imaging doesn’t give you the answer you need to feel the breast to find out – the fine needle biopsy has been requested so you need to feel the breast to see where you’re going to do the biopsy. So if the breasts weren’t examined, how can you do the biopsy if you don’t know where to do it? If the breasts were examined I couldn’t understand why two other examiners found an abnormality, and it appeared to be not present in this particular case.

And there again you make the assumption that lumpiness is abnormal, do you? --- No.

All right, well, let’s make these assumptions. There is a clinical examination? --- Yes.

And as a result of the clinical examination it is considered to be normal? --- Yes.

And as a result of ultrasound it is decided that it’s normal? --- Yes.

There’s not a lot there and you don’t see anywhere, you don’t see any lesion on the ultrasound to target, there’s not an awful lot to suspect? --- As I said before, I’d ask the patient about her area of concern and I’d probably ring the requesting doctor about the area of concern also.

The assumption that you make behind that is that also the treating doctor who made the referral has the opinion that they are suspicious lesions? --- Yes, yes.”

139 She was cross-examined about the clinical notes of Dr Willington in the following way:

“And the line above that, “no symptoms”? --- Right.

Do you accept that? That that was the note that was taken at the time? --- Well I accept that no symptoms - - -

There were no symptoms. That there was a note that recently lactating, firmer lumpier tissue and appears to be sebaceous cyst? --- Yes.

Now, there’s nothing from that of itself which is sinister at this stage, correct? --- The writing or the diagram? Are you talking about up to “no symptoms” or beyond that?

No, well, let’s start with them one by one. There’s nothing suspicious about, “no symptoms”, is there? --- No, not at all.

There’s nothing suspicious about “something that appears to be a sebaceous cyst”? --- No, not really.

And there’s nothing suspicious by noting that a patient has been recently lactating, correct? --- No – yes, correct.

Nothing suspicious. And there’s nothing suspicious of itself of firmer, lumpier tissue? --- Yes, there is. This diagram indicates an abnormality in the breast.

I’m sorry. I thought you had just conceded a moment ago that lumpy tissue is not of itself normal or suspicious? --- Not if it’s symmetrical, been known to be there for a long time. There are lots of reasons why lumpy tissue may in fact not be suspicious. I feel lumpy tissue every day but if somebody feels an area of lumpy tissue, even if it hasn’t been complained of and actually documents it like this, to me it’s very suspicious. I mean, why would you bother to do it?

On the referral itself, page 354, history and PD, PD you understand means provisional diagnosis? --- Yes, yes.

There’s no provisional diagnosis there of breast cancer, correct --- 354, no.

You disagree with me or you agree with me? --- Ask me the question again and I’ll tell you.

Yes, certainly. There is no provisional diagnosis of breast cancer? --- There’s no provisional diagnosis of breast cancer.

And in fact that’s why a patient is sent for ultrasound and mammography? --- And fine needle aspiration.

Yes. And there is otherwise no area of where the doctor says – uses the word suspicious in this document? --- In this document, no.

Yes? --- There’s no mention of suspicious.”

140 The evidence of Dr Sullivan, when properly understood, makes plain that the foundation of her opinion (expressed in relation to a specialty other than her own) depended upon the assumption (treated as a fact) that Dr Willington and Dr Tyson had each clinically observed, as a result of palpation, a lesion suspicious enough to warrant biopsy even in the event of negative mammogram and ultrasound. As I have already endeavoured to point out, it was not admissible for her to draw that inference as a fact from interpreting the records of somebody else. If it be treated as an assumption, then the assumption has not been proved, rather, the evidence in the witness box of the treating clinicians is to the contrary, and this is consistent with the contemporaneous records and with what was done by the various practitioners at the time.

141 If Dr Willington had observed a lesion of the type assumed by Dr Sullivan then, according to Dr Sullivan’s view of the “triple test”, she would have been bound to order a biopsy, even in the face of a negative mammogram and ultrasound. Dr Sullivan said:

“Strictly, a “Fine Needle Biopsy” should have been requested.”

That, however, was no part of the plaintiff’s case. Indeed, Dr Willington had been dismissed from the proceeding before trial. She was not cross-examined to suggest that she had had such a duty and had failed to carry it out. Her evidence was to the contrary of her finding any such lesion. If Dr Willington did not find a lesion of the kind assumed by Dr Sullivan and Professor Tattersall, then the foundation for the criticism of the appellant as to the August occasion completely disappears. Incidentally, the lack of any serious suspicion by Dr Willington in relation to the lumpiness is corroborated by the plaintiff’s evidence (accepted by his Honour) that Dr Willington told her that she had blocked ducts and had said that the “masses” probably consisted of a cheese-like substance related to breast feeding. What is more, Dr Willington did not make any provisional diagnosis of cancer. It is also worth noting that Nurse Kippen, who had conducted the initial examination on 10 August at the Family Planning Clinic, had not noted any aspect of the upper left quadrant of the left breast, that note having been added by Dr Willington.

142 The foundation for finding against the appellant on the basis of the December consultation is even more insecure than that in relation to August. Dr Tyson was never a defendant. It was not put to her that she had failed in her duty in not ordering a biopsy. The Family Planning clinical notes of the December consultation make no reference to the upper outer left quadrant. The only reference in the referral was to “general tenderness esp upper region”. His Honour referred to the evidence of the plaintiff that she had been concerned “that the lump at the side of her breast had been getting bigger” and that it had grown to what she described as “a large, hard mass with hard, jagged and non-collapsible edges”. His Honour then went on to say:

“Dr Tyson’s notes of that consultation do not contain any specific reference to what Dr Willington had described as “firmer lumpier tissue” in the upper left quadrant of the plaintiff’s breast.”

Later, his Honour said:

“It was also true that Dr Tyson’s notes did not include any reference to such a lump but that admission did not, of course, prove that it had not been present.

It is unclear as to whether the judge found that the lump to which the plaintiff referred was in the upper outer left quadrant. If so, her evidence cannot be reconciled with the notes. The evidence was contained in the affidavit of the plaintiff as follows:

“20. On or about 7 December 1995, I returned to the Family Planning Clinic. I was still concerned that the lump at the side of my breast was getting bigger. I also noticed another small lump at the bottom of the nipple. The large lump had grown rapidly from a small lump to a large, hard mass with hard, jagged and non-collapsible edges. At the consultation I was attended by another female Doctor. It was not Dr Willington as I think she had left or she may have been on maternity leave. I understand the Doctor I saw was Dr Tyson. I explained to her that the left lump was getting bigger and that a new lump had developed. I repeated my concern due to my previous experience with cancer. Dr Tyson referred me to Woden Valley Hospital for further tests.”

143 Dr Tyson actually located and measured two lumps – a lump lateral to the central left nipple, approximately 1.5 centimetres in diameter, non-tender, and a 0.5 centimetre lump at central lower area of nipple, probably a new ductal enlargement. Neither was in the upper region. It is inconceivable that those lumps would be noted and measured and yet a lump, in the same breast, of the kind described by the plaintiff would have been missed. Thus, either the plaintiff was referring to (although perhaps somewhat exaggerating) the lump adjacent to the central left nipple or was mistaken in her recollection as to the upper region at that stage.

144 It is not clear from [38] and [39] of the judgment whether the judge was critical of the appellant in relation to the December examination otherwise than in relation to the left upper outer quadrant. If he was, it would not go to any issue in the case, as there is no suggestion that he should have done more in relation to the area on or adjacent to the areola. It seems to me, with respect, that any such criticism must have resulted from a misunderstanding of the nature of the evidence given by the appellant when he was demonstrating his findings by reference to the actual ultrasound images, where he pointed out what the ultrasound showed as the cause of the palpable findings of Dr Tyson. These paragraphs, and [45], [46] and [47], appear to assume that the reports by the appellant to the referring clinicians should have referred to a physical examination. As both the reports themselves make clear, verified by the evidence, they purported to report only upon the ultrasound results. This is consistent with the February reports by Canberra Imaging. Any apparent inconsistency between the ultrasound report and clinical findings was a matter for judgment by the clinician. These misunderstandings would no doubt have contributed to the judge forming an unfavourable view of the appellant.

145 In that connection, they should be taken together with what had been found in relation to an aspect of the August consultation as follows:

“37. The third defendant maintained that on that occasion there had been a cluster of mildly dilated ducts “lateral to the areola” in the left breast and that he had not done a fine needle aspiration because “clinically there was no discrete lump”. I was unable to accept this assertion. On the contrary, I accepted the evidence of the plaintiff and her husband that there had been a discrete lump, that it was within the areola and that it was in the “three o’clock” position in relation to the nipple. Furthermore, Dr Willington had noted the presence of a pea sized lump in that position on 10 August 1995 and Professor Langlands, a distinguished oncologist who gave evidence for the defendants, agreed that “it defies belief” that such a lump would have disappeared in only four days.”

In my opinion, when the evidence of the appellant is considered as a whole, there is no doubt that when he said he did not do FNA in August because “clinically there was no discrete lump” he was referring to the area of lumpiness in the upper outer quadrant referred to by Dr Willington. His explanation for not doing FNA on or near the areola was quite different and, indeed, was referred to in his report. He identified a thickened duct that might have had some chronic inflammation which accounted for the palpable finding of a clinical lump, but, as the area was asymptomatic, he did not biopsy it. Far from suggesting that the discrete lump had disappeared, he had ascertained by ultrasound the explanation for the lump and judged that it was not necessary to biopsy it. There is no credible evidence to suggest he was negligent in that conclusion and it was not found that he was negligent in coming to that conclusion. The suggestion that the lump would have disappeared in four days seems to have come from a passage of cross-examination in which there was confusion between the August and December occasions.

146 Dr Lawrence expressed views critical of those, including the appellant, who had been involved in earlier dealings with the plaintiff. Upon analysis, those criticisms depend upon the same path of reasoning as those of Professor Tattersall and Dr Sullivan, and, so far as the appellant is concerned, suffer from the same problem.

147 The judge referred to the evidence of Professor Levi in the following terms:

“44. Professor Levi, who gave evidence on behalf of the defendants, agreed that the area of firmer lumpier tissue identified by Dr Willington would have been the most suspicious area and that on the balance of probabilities it had been “clinically available from August [1995] through to the end of February [1996]”. He also agreed that if the lumpiness had been there as described it was highly unlikely that a clinician competently carrying out his or her duties could not have found it during that period. …”

148 The relevant portions of the report of Dr Levi are as follows:

“4. With regards to appropriate treatment based on the symptoms presented in August 1995. As documented in the clinical notes, evidence of a lump was described in the upper outer quadrant of the left breast as of August 1995. This must have been regarded with some degree of suspicion for the recording to have been made in the clinical notes. Despite the negative ultrasound, if clinical suspicion had been present as of August 1995 then consideration for relevant biopsies would have been appropriate. This would have included initial fine needle biopsy and if this had proven negative then consideration for excision biopsy if clinical suspicion remained would have been the appropriate approach.

5. With regards to appropriate treatment based on symptoms as of December 1995. As the mass lesion had apparently increased in size somewhat as of December 1995 as indicated in the clinical notes, then this would have been further indication for full investigation. This would have included mammogram as well as ultrasound. Nevertheless, in the context of clinical suspicion of a mass appropriate further decisions would have included fine needle biopsy and if negative going on to excision biopsy.

…

6. With regards to further diagnostic modalities to be employed in August 1995. As indicated above, this would include mammogram, fine needle aspiration and excision biopsy based on clinical suspicion of the presence of the mass. The appropriate referring doctor would have been Dr Willington of the family planning clinic.

7. With regards to diagnostic modalities in December 1995. As indicated above, once again this would include mammogram, fine needle biopsy and excision biopsy if clinically indicated in the presence of the lump. The appropriate referring doctor would have been Dr Tyson of the family planning clinic.”

149 In evidence-in-chief he gave evidence as follows:

“Now, we have heard evidence, it’s not in dispute that there was a treating doctor in the Family Planning Clinic who made a clinical examination and then a referral for various tests? --- Yes.

Suppose the tests then go back to the – the results of those tests go back to the doctor, where do the ongoing responsibility lie for follow-up? --- In general terms the referring doctor or the initial treating doctor.

Now, you mentioned the word suspicion, what did you mean by that? --- The abnormality detected raises concern about its nature.

Now, to put this another way, is every lump suspicious? --- No, it’s not. There are some lumps which are so clearly not malignant, so one can say very confidently they’re not, but it’s not black and white, and there’s no such thing as always and never, and that’s why it’s within the critical realities of what we do, you have to always be concerned about what you find, and if in any way you feel that you can’t say unequivocally that it’s not cancer, you have to then proceed to assess it further.

And whose responsibility is that? --- The person who first detected the abnormality.

And in terms of who – I’m sorry, I’m just trying to get an idea who that person is as you understand it? --- Well, you know, it wouldn’t matter that it was the referring GP or a radiologist examined the person at the time, if they found something which they suspected could be abnormal and a particular cause for concern about its nature, then it’s their responsibility irrespective of who it is, to proceed further.

You told us that when the reports come back that there is an ongoing responsibility of the clinician, what do you mean by that? --- In general terms if an individual, a clinician, has referred a patient to a radiologist for a specific examination and that examination is performed and a report given and returned to the referring doctor there remains a responsibility of the referring doctor to follow up that whatever way is appropriate.”

During the course of his evidence he referred to “lumpiness” rather than “a lump” in relation to the August symptoms, and par 4 of his report would need to be read accordingly.

150 It is clear from the evidence of Dr Levi that both the report and the answer of his referred to in the judgment are based upon a reading of the successive clinical notes. In that respect, he is in the same situation as Professor Tattersall and Dr Sullivan, who have expertise in the same field as his. In the course of his cross-examination, Dr Levi was pressed on a number of occasions to agree, in effect, that the level of suspicion indicated by the contents of the referrals (and the clinical notes) established the existence of clinical signs giving rise to a suspicion of cancer sufficient to require biopsy even in the event of a negative ultrasound result. He would not do so as he regarded that question as a matter of judgment for the clinician. When read as a whole, it seems to me that the effect of the answer referred to in the judgment was that, on the balance of probabilities, it was likely that whatever condition was discerned or discernable in August 1995 in the upper outer left quadrant was likely to have continued to be present in December, January and February.

151 In my opinion, the evidence of Dr Levi underlines certain things:

1. That it would be necessary to reject the evidence of Dr Willington that she did not regard the area of lumpiness as of sufficient suspicion to warrant biopsy in the absence of a negative ultrasound in order to find negligence on the part of the appellant. If she, as a treating doctor, found no cause for such a level of suspicion, such knowledge and suspicion cannot be imputed to him.

2. The appellant did as was asked by the treating doctor, and it was for her, having received his report on the ultrasound, to consider whether there should be some form of biopsy.

3. As Dr Tyson found no more than general tenderness in the relevant area in December, it would be necessary to find that she was plainly negligent in not finding more and in not ordering a biopsy regardless of the result of any ultrasound.

None of these were found by the judge.

152 In my opinion, the implicit admission of inadmissible expert evidence was sufficient to make the trial miscarry. The judge did not expressly refer to the evidence of Professor Tattersall, Dr Sullivan and Dr Lawrence in that part of the reasons which concerned the particular issue upon which I have focussed. However, he did comment favourably upon their evidence, and his reasoning is consistent with his being influenced by their opinions. In any event, some of the evidence of Dr Levi to which express reference was made has the same defect.

153 The evidence that the clinical responsibility for the patient did not rest with the appellant which was given by Dr Levi is consistent with the evidence of a number of witnesses, including Drs Willington, Tyson, Lawrence, Jain and Professor Langlands, and with the actual conduct of Dr Lawrence once the plaintiff became his patient. It is of interest to note that Dr Lawrence referred the plaintiff for surgical excision in the light of his observations in late January, and repeated the referral with more emphasis after his observations later in February when there was clear evidence of the lump growing. That is not to suggest that if the appellant had actually clinically observed something which demanded biopsy but which was not confirmed by ultrasound that he could have ignored that circumstance. He would, at the least, have to expressly advise the referring doctor.

154 A good deal was said during the evidence about the so-called “triple test” referred to in the finding against the appellant, namely, the necessity of excluding cancer by one of: (i) clinical observation, (ii) mammography and ultrasound, or (iii) biopsy. That evidence was given in September 2001. The evidence of Dr Willington is that guidelines referring to the triple test were not in existence at the time of the examinations in 1995 and were only promulgated by the Royal College of General Practitioners in 1997. Those guidelines are not in evidence, and no evidence was called as to the state of professional opinion as at 1995 as to the criteria which would warrant a biopsy notwithstanding negative mammography and sonography. The submissions for the respondent, consistently with the conduct of the trial on behalf of the plaintiff, appeared to suggest that because lobular cancer will often not be discernable on physical examination, or by mammography or sonography, any abnormality of the breast which could conceivably indicate the presence of lobular cancer would require a biopsy. As it is also clear that FNA is not well suited to detect multi-focal lobular cancer, it would follow that a core biopsy or perhaps even an excision biopsy would be required in every such case. As generalised tenderness or lumpiness might indicate lobular cancer, if the triple test is to be administered in the way contended for, then there is much to be said for the submission of counsel for the appellant that there are serious implications for the practice of this kind of medicine in the ACT, and, no doubt, elsewhere. It would leave little, if any, discretion to the clinician. The consequences of such large-scale invasive diagnosis, both for patients and for the resources available for medicine, are somewhat alarming. In this connection, it needs to be recalled that, in the present case, generalised lumpiness in August and generalised tenderness in December are each said to have sparked the necessity for an invasive diagnostic technique without more. It is, of course, not difficult to see the attraction of that argument in a case where, with the benefit of hindsight, it may be thought that a throw of the dart at the dartboard may have assisted the unfortunate plaintiff. It is quite another to say that this is an appropriate general rule for the diagnosis of a complaint as inherently difficult to diagnose in its early stages as is lobular cancer. The dangers of being influenced by the harm which eventuates in the individual case after the event have been, again, recently stressed (per Gleeson CJ in Rosenberg v Percival at [16]).

155 Even if the triple test is to be undertaken, the evidence is that there is no necessity for the one practitioner to carry out all limbs – indeed, few would be so qualified. There is no necessity for a person referred the task of carrying out one limb of the test to carry out the others. In my opinion, the judgment of the Supreme Court blurs lines of responsibility for patients by imposing general clinical responsibility for a patient upon a specialist with a particular and narrow field of expertise, involving administering a particular test or procedure. It is one thing to require such a person who observes something of concern to deal with it or pass it on to those who have the responsibility of doing so, it is quite another to impose upon that person the clinical obligation of looking for the problem. By way of analogy, if a barrister specialising in tax is briefed by a solicitor to advise on the stamp duty aspect of a transaction, the barrister will need to understand the structure and mechanics of the transaction and, in doing so, might detect some possible breach of corporations law. In that event, it might be the duty of the barrister to pass on that concern to the solicitor, but no duty would lie upon the barrister to vet the transaction for potential breaches of the corporations law (cf Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [309], [312], [313], [349], [364], [365], [402], [417], [420] and [649]).

156 I am satisfied that the appeal ought to be allowed, and the judgment below set aside. If my view were to prevail, there would be a question as to whether there ought to be a new trial or a verdict for the appellant. As my view will not prevail, it is not profitable to resolve that question, or the issue of costs which would depend, in part, upon such resolution.

I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 7 November 2002

Counsel for the Appellants:	Ms J Morrish QC and Ms L Walker

Solicitor for the Appellants:	ACT Government Solicitor

Counsel for the Respondent:	Mr F J Purnell SC and Mr D J C Mossop

Solicitor for the Respondent:	Maliganis Edwards Johnson

Date of Hearing:	20, 21, 22 August 2002

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