Louise Anasson v Anna Koziol [1996] ACTSC 122 (20 December 1996)

SUPREME COURT OF THE ACT

LOUISE ANASSON v. ANNA KOZIOL
No. SC580 of 1993
Number of pages - 20
Damages - Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MILES CJ

CATCHWORDS

Damages - medical negligence - cervical cancer - defendant fails to recommend Pap smear - plaintiff becomes pregnant - cervical cancer discovered - hysterectomy and termination of pregnancy - plaintiff not entitled to damages for hysterectomy - plaintiff entitled to damages for loss of pregnancy.

Negligence - medical negligence - standard of care - plaintiff consults defendant in 1987 with concerns about menstrual irregularity and wish to conceive - whether defendant should have recommended Pap smear for investigation into possible cervical cancer - practice among general practitioners in 1987 not to perform screening tests not decisive - whether incomplete history given by plaintiff to defendant should have put defendant on notice of gynaecological problems and advisability of Pap smear - it should - defendant negligent.

Negligence - medical negligence - causation - defendant fails to recommend Pap smear at consultation in late March - cervical carcinoma discovered in September - radical hysterectomy in November - carcinoma found to be invasive to depth of 0.5 mm - difference of opinion among medical practitioners as to whether depth of invasion sufficient to necessitate hysterectomy - no room for court to resolve differences by application of "common sense" - no evidence tumour would have been less invasive between March and September - plaintiff fails to prove hysterectomy caused by defendant's failure to advise Pap smear - basis for alternative claim for loss of chance of avoiding hysterectomy.

Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479 Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582 F v. R (1983) 33 SASR at 193 Reibl v. Hughes (1980) 114 DLR at 13 Malec v. J.C. Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638 Hotson v. East Berkshire Area Health Authority [1987] 1 AC 750 J.G. Fleming, Probalistic Causation in Tort Law: a Postscript (1991) 70 Canadian Bar Review, 137 Nagle v. Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423 Hotson v. East Berkshire Area Health Authority [1987] 1 AC 750 McGhee v. National Coal Board [1972] UKHL 7; (1973) 1 WLR 1

HEARING

CANBERRA, 29 and 30 April and 6 June 1996 20:12:1996

Counsel for the plaintiff: Mr K.J. Crispin, QC

Solicitors for the plaintiff: Clayton Utz & Co.

Counsel for the defendant: Mr P.R. Garling, SC

Solicitors for the defendant: Hill & Rummery

ORDER

THE COURT ORDERS THAT:
1. There be judgment for the plaintiff in the sum of $30,000.

DECISION

MILES CJ
1. The plaintiff, aged 27 and pregnant, submitted to a radical hysterectomy on 20 November 1987. It was done in order to remove a cancerous growth in the cervix. On 6 September 1993 she sued the defendant, a general medical practitioner, for negligence, claiming that the need for the hysterectomy could or would have been avoided if the defendant had advised her to have a Pap smear.

2. The proceedings were originally brought against two additional defendants, but those claims were discontinued.

3. The particulars of negligence set out in the amended statement of claim are as follows: "(a) Failing to attach sufficient weight to the plaintiff's history on 20 March 1987 and 2 June 1987. (b) Failing to obtain a proper clinical history on 20 March 1987 and 2 June 1987. (c) Failing to consider the possibility of cervical cancer. (d) Failing by appropriate investigation and examination properly to determine whether cervical cancer existed. (e) Failing to carry out or cause to be carried out a Pap smear. (f) Failing to refer the plaintiff to a gynaecologist or oncologist on or shortly after 20 March 1987."

4. However, the case presented on behalf of the plaintiff by way of written submissions made at the end of the hearing relied essentially on two allegations arising out of the consultation on 20 March 1987 only, namely: "(a) The defendant failed to take an adequate history as to the plaintiff's previous gynaecological problems and, in particular, failed to enquire as to when she had last had a Pap smear; and (b) The defendant failed to advise the plaintiff that it would have been advisable to have a Pap smear and to warn her of the risks of not having such a procedure."

5. These two propositions are very closely connected. The plaintiff's case is not simply that a woman presenting to a general practitioner should have been warned of the risks of cervical cancer and the desirability of having regular Pap smears. The case was rather that what the plaintiff told the defendant on 20 March 1987 put or should have put the defendant on notice that the plaintiff had a real or potential gynaecological problem and that in the light of that actual or constructive awareness, the defendant should have enquired whether the plaintiff had had a recent Pap smear, and that in the light of the answer which she would have received, the defendant should have advised the plaintiff there and then to have a Pap smear. If the Pap smear had been performed at that stage, so the submission goes, then it was likely that a cervical tumour, still not invasive, could and would have been removed without the need for a hysterectomy.

6. Counsel for the defendant in his written submissions claimed that the case, as pleaded particularised and opened, did not extend so far as to allege that the defendant failed to warn of a risk of cancer or failed to advise the plaintiff that she should have a Pap smear in order to eliminate or remove that risk. Although the precise case presented by the plaintiff was not made completely clear until the lodging of submissions after the evidence had been called, I doubt whether it falls outside the pleadings or particulars and I am confident that the defendant is not caught by surprise by having to respond to it.

7. The defendant denies both negligence and causation. For the defendant it is submitted that by the standards of general practice of medicine in 1987, a decision about whether to offer a Pap smear was a matter for judgement for a clinician to undertake and that, in the circumstances in which the plaintiff presented to the defendant, the judgment that might have been made was one about which reasonable minds might differ. Further, it was submitted on behalf of the defendant that, on the issue of causation, the plaintiff has demonstrated neither that she would have accepted advice to have a Pap smear nor that if she had, the need for hysterectomy would have been avoided.

8. The issues as to negligence and causation need to be decided in the light of factual matters in dispute. I will deal with those matters.

Plaintiff's background 9. The plaintiff was born on 23 May 1960 at Cooma. Her family moved to Canberra when she was a schoolgirl. She married in August 1986 and was working as a Public Servant at Woden Offices in early 1987.

10. Until that time the plaintiff had had a long history of complaints and sickness of a gynaecological nature. Since the age of 14 she had made frequent visits to local health centres for treatment. It is necessary to direct attention to only some of the entries in the records. She is recorded as taking the contraceptive pill at the age of 15, and ceasing and resuming it many times since then. The first record of many pregnancy tests (results invariably negative) appear in June 1977. There are several references to Pap smears, none of which indicate whether the test was conducted or merely recorded or if conducted what the results were. It is recorded that on 6 March 1979 she was to see Dr Hosking, a gynaecologist, but did not do so.

Consultation on 20 March 1987 11. On 20 March 1987 the plaintiff consulted the defendant at the defendant's rooms at the Phillip Health Centre. The defendant had been in private practice there since 1981. At the Centre she rented rooms from the government, apparently on a commercial basis. She ran what she called a "business related" practice and was trying to build it up to a family based practice. She was busy enough and although she "hated to run behind time and keep patients waiting", she did not see the plaintiff for her 11 o'clock appointment until 11.34 a.m. The consultation ended at 11.54 a.m.

12. In accordance with common medical practice, the defendant made and kept notes of the consultation. The notes were not and could not be expected to constitute a complete record of what was said and done by either patient or practitioner. But there is no doubt that a competent practitioner would have recorded the significant aspects of the consultation in the notes. In my view, there is no reason to conclude that the notes in the present case are not a reasonable but succinct record of the consultation. Although one might expect that the notes could have been fuller without unduly taking up the defendant's time or attention, I reject the submission that they are deficient or that in themselves they are indicative of a failure on the part of the defendant to take an adequate history from the plaintiff.

13. There is a conflict between what the plaintiff says she told the defendant and what the defendant says she was told by the plaintiff at this initial consultation.

14. In her evidence-in-chief the plaintiff said: "I said to her that I was - I hadn't had a period for a couple of months. My last period was early December. I had had a couple of pregnancy tests and they proved to be negative. I had what I believed to be symptoms of pregnancy. I had nausea, sore nipples - I can't think what else - and I said I just wanted a checkup. I was concerned."

15. At another point she said that she "basically" asked the defendant "Why haven't I got a period?"

16. In cross-examination the plaintiff said, "I would've said I want a check up, yes, it was a gynaecological problem."

17. What the plaintiff said to the defendant was likely to be affected by her purpose in deciding to consult the defendant. Clearly, she must have been dissatisfied with the doctors at the Scullin Health Centre where she had been treated regularly for gynaecological symptoms since the age of 14. When she visited the Scullin Health Centre on 4 March 1987, she is recorded as having stated that she had missed a period one month previously (not, as she told the defendant, that the periods ceased in January) and she questioned whether she was pregnant. The pregnancy test was negative and she received advice to return in two months time if she had no period in the meantime, advice which was similar to that which she subsequently received from the defendant. According to her evidence, a friend at work had mentioned the defendant and the plaintiff, who until that time had seen only male doctors, thought that the defendant, as a woman, could relate more easily to the symptoms and problems that the plaintiff was having. The defendant's rooms were also conveniently close to the plaintiff's place of work. The plaintiff also had a plan whereby she wanted to conceive by the end of the year. One of her problems concerned her sexual relations, but she did not draw it to the attention of the defendant at that first meeting.

18. The defendant's notes do not bear reproducing in these reasons. Understandably, in view of the lapse of time until the issue of the writ and until the ultimate hearing, the defendant has no independent memory of the consultation and relies on the notes she took at the time. The defendant was not able to say much more than what the notes suggest to anyone reading them, namely that the plaintiff told her that she had had two pregnancy tests in the last couple of weeks, that she had not had a period since January and had ceased taking the pill on 20 January. The plaintiff is recorded as making some reference to irregular periods, but the defendant's notes do not indicate exactly what was said in this regard. The plaintiff complained of sore nipples and nausea. The defendant administered a urine test for pregnancy and the result was negative. The defendant made a provisional diagnosis of post pill amenorrhoea. She advised the plaintiff that if she had no further periods in the next two months, she should return with a view to a referral to a specialist gynaecologist. The plaintiff in her evidence said that the defendant also told her to come back in the meantime if she had any concerns.

19. The plaintiff insisted in her evidence that she told the defendant that she missed her period in January and that it was only after that that she ceased taking the pill because she wanted to be sure about whether or not she was pregnant. The plaintiff seemed to be of the view, expressed in her evidence, that the defendant's diagnosis of post pill amenorrhoea was not correct because it did not take account of the period missed in January. The medical evidence did not focus on this issue and, in my view, it does not need to be decided. It might be noted, however, that Dr Gray thought that post pill amenorrhoea was an accurate diagnosis anyway. Dr Hosking, a gynaecologist to whom the plaintiff was later referred by the defendant, took a slightly different history on 4 September 1987. She stated that the plaintiff "discontinued the pill in February and then missed her periods until May and since May she has had regular periods". It is of significance that in her report to the defendant, Dr Hosking states twice that the plaintiff was wanting a gynaecological check up.

20. Whilst I think that the plaintiff's account of what she said to the defendant at their first encounter on 20 March 1987 is generally true, I do not accept that she has as precise a memory as she claims. I do not accept that she remembers asking the defendant for a "check up", let alone a "thorough" check up or a "gynaecological check up". The plaintiff had very little memory of visits to other doctors at about this time. For instance, she does not remember going to the Scullin Health Centre on 4 March 1987 expressing concern that she might be pregnant after missing a period. The entry in the Scullin Health Centre records to this effect is not likely to be wrong. Of perhaps greater significance is the plaintiff's lack of memory of prior Pap smears. The record again shows that she told the Scullin Health Centre on 28 March 1985 that she had had a Pap smear six months previously. It appears that towards the end of 1986 she was living in Sydney where she consulted the Family Planning Association clinic or some similar body. The plaintiff was also unable to remember a previous Pap smear on 10 August 1982, also recorded by the Scullin Health Centre. The plaintiff did agree that she had had more than one Pap smear and knew vaguely what they were for, although she did not understand "how serious it was" and "could never imagine" that it could happen to her. The earliest Pap smear recorded is by the Kippax Health Centre on 26 June 1980. She had no memory at all of a consultation in April 1987 with a general practitioner, Dr Lai. When shown records relating to this consultation (check) she offered the explanation that she could have gone to Dr Lai for a cold.

21. In summary, whilst I do not accept that the plaintiff specifically asked for a "check up", she did indicate to the defendant whether expressly or otherwise that she was concerned about her recent lack of periods and other symptoms of a gynaecological nature.

Events culminating in hysterectomy 22. The plaintiff returned to the defendant on 2 June 1987. She said in her evidence that she told the defendant that she was still wanting to conceive by the end of the year and that she was experiencing difficulties in her relationship with her husband. The defendant's short notes of the consultation confirm the plaintiff's evidence. She was referred to Dr Hosking, the gynaecologist, and also to a Dr Welberry. The latter was specialised in counselling in matters of a sexual nature. I accept the defendant's evidence that she referred the plaintiff to Dr Welberry because she thought that the plaintiff might have been suffering from vaginismus. I accept also that whether or not the plaintiff specifically asked for a check up (as she claimed in her evidence) the purpose of the reference to Dr Hosking was just that. Although there was no indication at that stage that she was exhibiting signs of cervical cancer, it was expected by the defendant that Dr Hosking would conduct a full gynaecological examination, including a Pap smear.

23. Although the statement of claim alleged negligence on the part of the defendant at the consultation of 2 June 1987, this allegation was not pursued in submissions. It is not made out on the evidence, and I reject it.

24. The plaintiff made arrangements to see Dr Hosking with neither haste nor delay. Dr Hosking examined her on 3 September 1987. The plaintiff expressed concerns about her change in menstrual cycle and a desire to be pregnant in the new year. She sought advice as to the planned pregnancy. Vaginal examination showed a normal uterus and cervix. Dr Hosking's practice was to perform a Pap smear if none had been done for 12 to 18 months and, although she was unable to say when the plaintiff had last had a Pap smear, Dr Hosking took a smear and arranged for the test to be carried out by a pathology service. The report dated 10 September arrived at Dr Hosking's room a day or two later. It read: "A typical cells present consistent with CIN 3 (severe dysplasia/carcinoma in situ). Features consistent with Papillomavirus infection are present. Recommend colposcopy/biopsy."

25. Dr Hosking wrote to the plaintiff advising her to make an appointment for follow up and advising her not to become pregnant. The plaintiff did not respond until 24 September by which time she had been back to Dr Koziol, who confirmed that she was indeed pregnant. It is likely that conception took place on about 2 September.

26. Dr Hosking did not consider that the pathology indicated a situation of particular urgency and in the hope of saving the pregnancy she delayed colposcopy and further vaginal examination until 16 November. The findings then, however, were somewhat remarkable when compared to the Pap smear results: a tumour was observed protracting through the cervix with the appearance of cervical carcinoma. A biopsy was performed and the report came on 17 November by telephone that there was "invasive moderately differentiated, anaplastic squamous carcinoma."

27. Dr Hosking immediately contacted the plaintiff to explain the diagnosis. She also telephoned Dr Murray, a gynaecological oncologist at the King George V Hospital in Sydney, and arranged to refer the plaintiff to him.

28. Dr Murray saw the plaintiff and, considering that the carcinoma then at stage 2A was rapidly becoming more invasive, decided that "something had to be done". He was of the opinion that the pregnancy had to be terminated and a radical hysterectomy performed. That course was approved by a panel at the hospital. The procedure took place on 20 November 1987. Technically the operation was considered a success, without need for follow up chemotherapy or radiology, and with an excellent prognosis with respect to malignancy. The plaintiff's life had been saved but she lost the 10-weeks old child that she had been carrying and she lost her capacity to bear any more children.

29. Post operative pathology showed the tumour to be 30 by 25 mm in dimension and 8 mm in depth, chiefly exophytic (external to the tissue of the cervix) but penetrating the cervical stroma to a minor extent, estimated at about 0.5 mm.

Should the defendant have recommended a Pap smear? 30. As I have already indicated, this question cannot be answered sensibly without deciding whether the defendant had obtained an adequate history from the plaintiff. More precisely, the question is whether on the information that the plaintiff did disclose to the defendant, the defendant should have enquired further and elicited the fact, as it was, that the plaintiff had not had a Pap smear for some two years.

31. The expert evidence on this question was, on the face of it, evenly balanced. One gynaecologist and one general practitioner were qualified for each of the parties and expressed views accordingly. The evidence of the treating doctors added little.

32. Before referring to the expert evidence in some little detail, it is desirable to acknowledge that the decision as to whether the defendant's conduct measured up to the appropriate standards of the time is ultimately a matter for the Court and not for the medical profession or any section of it: Rogers v. Whitaker [1992] HCA 58; (1992) 175 CLR 479. This is an important principle in the circumstances of the present case because the question is not whether the defendant should have made a diagnosis of cervical cancer, but whether the defendant should have tendered advice to the plaintiff in order that the possibility of cervical cancer might be investigated and early intervention initiated. That question is not one which involves the sort of judgment which needed to be exercised in circumstances of great urgency (such as a choice to be made by a surgeon during the course of surgery), or which required significant skill and experience.

33. It was submitted in the written submissions on behalf of the plaintiff that the defendant was seeking to rely on the discredited so-called Bolam principle that: "A doctor is not negligent if [s]he acts in accordance with a practice accepted at the time as proper by a responsible body of medical practitioners even though other doctors adopt a different practice.": Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582.

34. In Rogers v. Whitaker, the High Court rejected this principle and in the majority judgment it was stated at p.478: "....particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to 'the paramount consideration that a person is entitled to make his own decisions about his life'."

35. There can be no doubt that the principle in Rogers v. Whitaker applies to the present case, particularly as the issue is directly concerned with the question of advice to be tendered to the patient and with decisions to be made by the patient on matters known to the doctor. However, matters in the "heartland" of medicine, namely the diagnosis and treatment of cervical cancer and its aetiology, are relevant not only on the issue of the standard of care but also on the issue of causation and can be understood and evaluated only in the light of expert medical opinion. In any event, the defendant does not rely on the Bolam principle, but upon the influential, if not decisive role that the state of responsible professional opinion played in 1987 as to the use of Pap smears for women who might, or might not, be exhibiting signs of possible cervical cancer. Finally, on this point, it might be observed that it seems that the Bolam principle is not as rigid as Australian lawyers have sought to express it in order to reject it. With respect to their Lordships, they might have been surprised to learn that they had delegated the duty of the courts to the medical profession (F v. R (1983) 33 SASR at 193), let alone "handed over" their responsibilities to a section of the community with an interest in the outcome (Reibl v. Hughes (1980) 114 DLR at 13). Some might regard Bolam as a case decided on its facts. It was not considered important enough to be published in the authorised reports.

36. In 1987 all general practitioners knew that women who were sexually active were at risk of cervical cancer and that the risk tended to be at its peak between the ages of 40 and 50 years. All general practitioners knew that a Pap test was a useful method for preliminary testing for cervical cancer and that regular Pap tests every 18 months to two years were an appropriate way for a woman to guard against the risk. However, in 1987 it was by no means a universal practice among general practitioners in Australia to advise women patients as a matter of routine that they should undergo regular Pap tests.

37. However some general practitioners did so. Dr J.B. Gray of Ryde has been a general practitioner for many years. He and his partners conscientiously take a detailed history from all new patients and for many years have advised women patients to have regular Pap smears. However, in his evidence, even Dr Gray agreed that the extent of the history taken from a new patient is a matter of judgment for the practitioner and that there would be no need for a complete history to be taken from somebody who came in for a stitch to a cut finger. He also agreed that there is a different approach to these sorts of matters between "24 hour quick turnover" medical practices and a practice like his which concentrates on traditional family medicine. He went on to say that "if there is (sic) any warning signs around then you should follow them". He said that a doctor "could not very well offer an opinion" to a patient about a Pap smear without obtaining a full history and that if he had been told by the plaintiff of her concern about whether she was pregnant and that she was experiencing amenorrhoea and sore nipples, he would have "looked elsewhere for a problem". On the precise matter of Pap smears, his evidence was not so clear. He said that the advised Pap smears once a year for his "girls", which I take to be his regular female patients, but also for anyone "off the street". There was no distinction between the way Dr Gray practised in 1987 and what he practised now and much of what he said is, with respect, common sense.

38. Dr Alex J. Crandon, Director of the Queensland Centre for Gynaecological Cancer at the Royal Women's Hospital and the University of Queensland, is a distinguished gynaecological oncologist. He also had been supplied by the plaintiff's solicitors with the plaintiff's full gynaecological history. In his report he said that the defendant should have enquired when the plaintiff had last had a Pap smear, and if she had told him that it had been more than 12 to 18 months previously (which was in fact the case) then the defendant should have undertaken a Pap smear and internal examination. During Professor Crandon's evidence, it emerged that he thought that, regardless of what history the defendant obtained, the plaintiff should have been the subject of what he called "opportunistic screening". Such screening occurs when the opportunity is taken to test a patient for a condition in respect of which the patient displays no symptoms. Opportunistic Pap smears were not commonly practised by general practitioners in 1987 and they raise issues of public health and health funding to which I will return in a moment.

39. Before discussing the opinion evidence called on behalf of the defendant, it is necessary to say that the defendant's witnesses were strongly attacked for lack of objectivity. Dr Gerard Wain, Director of Gynaecological Oncology at the Westmead Hospital, is also Director of the NSW Cervical Screening Program which has the responsibility of implementing in that State Department of Health Guidelines published in 1991. (Those Guidelines appear to have been followed in time by certain recommendations of the National Health and Medical Research Council, and, until Dr Wain's evidence, there may have been some confusion between the two.) Dr Wain was cross-examined on behalf of the plaintiff to suggest that his concerns about over-servicing and about the "medico-legal environment" made him keen to join the defence team. It was suggested further that his approach to the case (and others of which I must say there is no evidence) is affected by a predisposition towards finding that doctors are not guilty of negligence. It is not surprising that when he was sought to be further cross-examined over various definitions and descriptions in medical text books the process degenerated into an arguing match between counsel and the witness. He was also attacked in final submissions for saying that a finding of negligence would set a dangerous precedent (in fact he said it would be a serious precedent) and for heaping "paeons of praise" upon the defendant and Dr Hosking (in fact he described their care as "impeccable and of high quality"). Dr Wain also sought to express a direct view as to negligence, which is of course ultimately the function of the Court.

40. There was less scope for attack on Dr Amanda McBride, a general practitioner who practices in the central business district of North Sydney. It was submitted that in general terms she adopted a position which was "simply indefensible" and that she seemed keen to absolve a fellow practitioner of blame. She said at one stage "health politics is my forte". That answer was given in the context of being questioned about peripheral issues of public health and the source of health funding for Pap smears. I attach no significance to it. Dr McBride was talkative and free in expressing her opinions on the wide range of matters raised in the questions directed to her, but I saw no lack of objectivity amounting to partiality. She had her views and she saw nothing in what was put to her to make her change them.

41. Philosophers and scientists themselves probably agree that there is no absolute objectivity. Trial lawyers see little enough of it. The term "expert witness" is something of a misnomer. The expert witness is entitled to express an opinion in the appropriate field of knowledge and experience. The expert witness does not have to be skilled or experienced in giving evidence. Some experienced witnesses know how to avoid the use of language which strays outside the area of expertise and into the area of the function of the Court. The use of such language does not assist the Court in evaluating the evidence of the witness, but it does not necessarily rob it of all force. I did not find anything in the evidence of any of the medical witnesses in the present case which demonstrated lack of objectivity or bias. Furthermore, and contrary to counsel's submission, I do not regard Dr Wain as less qualified in the area of gynaecological oncology than Professor Crandon. Ultimately, the evenly balanced expert evidence is to be weighed in the light of the proven circumstances.

42. Reliance was placed on behalf of the plaintiff on a special supplement to the Medical Journal of Australia published on 16 September 1985 and entitled The Cancer-Related Health Check-up: A Guide for Medical Practitioners. Although all the witnesses who gave evidence were aware in a general way of the contents of this document, not all of them had read it and indeed not all of them subscribed to the Medical Journal of Australia or invariably read each issue. However, generally speaking, there is no dispute that the reasonably competent general practitioner in Australia in 1987 would have been aware of the discussion that was taking place in medical circles about the desirability of introducing mass screening for the purpose of detecting cancer early enough to lower mortality rates. The Medical Journal of Australia supplement stated: "Early detection of cancer can be achieved through: (a) mass screening of asymptomatic populations, where the public health objective is to reach everyone at risk; and (b) the search for early cancer in asymptomatic people at their request: that is, the cancer-related health check up."

43. The supplement went on to lay down certain criteria for tests for cancer and continued: "Except perhaps for the Papanicolaou (Pap) smear test, no procedure at present meets all these criteria, but the Australian Cancer Society has adopted the following recommendations to medical practitioners in the management of patients requesting a health check." (Emphasis in original.)

44. In relation to cervical cancer, the article recommended that a pelvic examination should be performed to complete the examination of the woman presenting for a health check and that an annual Pap smear should be advised for all women who have been sexually active. It recommended that if an abnormal smear is found, the patient should be referred for colposcopy and biopsy. The supplement further suggested that until more data is available, it would seem prudent to advise annual smears, at least in young women.

45. The case for the plaintiff was essentially that there was a known material risk of cervical cancer in the case of women in the plaintiff's age group, that there was a reasonable and available means of reducing it by carrying out a Pap smear, that the defendant knew of the risk and means of reducing it but chose to give no warning. Consequently, according to the submission, there was a breach of the requisite duty of care.

46. In my view, the conclusion does not necessarily follow from the preceding premises. What is omitted from the equation is the necessary premise that the plaintiff must show that the defendant's conduct was unreasonable. Although it is not a complete answer to the submission, it is relevant to observe that the plaintiff had visited various doctors for her gynaecological problems over many years. She had had Pap smears on at least three prior occasions. She herself knew what they were for, although she did not appear to appreciate the seriousness of the risk of cancer nor the utility of Pap smears. She was not asked whether she had received any advice previously about having Pap smears regularly. If the present defendant was negligent in failing to advise her in relation to a Pap smear, so then was any doctor who had seen her on previous occasions and similarly failed to advise her. Indeed, it could be said that, having regard to the contents of the supplement in the Medical Journal of Australia, if the defendant were negligent in failing to advise the plaintiff to have a Pap smear in order to avoid the risk of cervical cancer, so too was the defendant negligent in failing to give the plaintiff advice as to minimising the risk of breast cancer by carrying out self-examination, and minimising the risk of other forms of cancer as recommended in the supplement. However, negligence, if any, in these latter respects has, happily, not resulted in damage.

47. Furthermore, it is to be observed that the recommendations in the Medical Journal of Australia recommended regular testing for cancer through mass screening as part of a public health program (with which the defendant was not concerned) and for patients who requested a health check. The article did not go so far as to recommend opportunistic testing by way of Pap smear.

48. Dr McBride spoke of the need of the general practitioner to ask questions of a patient which were appropriate to the condition for which the patient was presenting. She said that a Pap smear is an invasive investigation which many women find unpleasant.

49. Particularly in the case of a male doctor, a female patient who presented for a sore throat may well be affronted by the suggestion that she should have a vaginal examination. Dr McBride also spoke of her own experience as a general practitioner in a business district where the patients often wish to have short, non-urgent queries answered and do not want the treatment expected of their primary general practitioner care giver.

50. I do not accept that the symptoms that the plaintiff described to the defendant on 20 March 1987 were indicative of cervical cancer and I accept that the diagnosis of post pill amenorrhoea was an accurate one, consistent with the subsequent findings on colposcopy. There is nothing in the medical evidence to suggest that amenorrhoea and a cervical tumour cannot co-exist. There was a sharp conflict, however, between Dr Gray and Professor Crandon, on the one hand, and Dr Wain, on the other, as to whether what the plaintiff told the defendant indicated that the plaintiff was at particular risk of cancer. Dr Wain's view was that on the history given to the defendant, the plaintiff should not have been considered as at greater risk than any other woman in her age group. His view appears to be based at least in part on his own personal research into what was once but no longer believed to be a distinct form of rapid growth cervical cancer. Dr Gray and Professor Crandon did not explain the scientific basis for their view that the plaintiff's limited history as disclosed to the defendant indicated a greater risk of cervical cancer. However, it may not be necessary to resolve the conflict between the two competing views on this particular aspect.

51. Because I reject the plaintiff's evidence that she told the defendant that she wanted a check up, she cannot bring herself within the recommendations of the article in the Medical Journal of Australia of 1985. Nevertheless, I think that the view of Dr Gray and Professor Crandon should prevail over those of Dr Wain and Dr McBride as to the need to have enquired further into the plaintiff's relevant history. Although I am not satisfied that the defendant should have realised that what the plaintiff told her indicated that the plaintiff was at particular risk of cervical cancer, it should have disclosed to the defendant that the plaintiff's symptoms were of a gynaecological nature and that the simple diagnosis of post pill amenorrhoea may not have been adequate. It would have been an easy matter and not very time-consuming to ask just a few more questions about the gynaecological history. Once that were done, it would have opened up the plaintiff's long history of gynaecological problems, and, once that also were done, it would not have been reasonable to omit to ask about a Pap smear. If the defendant had by appropriate questioning learned that the plaintiff had not had a Pap smear for some two years, it would not have been reasonable for the defendant to omit to advise that it was time for another one. This was not a case of a woman presenting with a sore throat or a cut finger who would have been affronted by the suggestion of a vaginal examination. In fact, by the time she was referred to Dr Hosking, the gynaecologist in September 1987, a full gynaecologist examination was what the plaintiff was asking for.

52. In other words, I think that from what the plaintiff told her, the defendant should have been on notice that the plaintiff's problems might not have been as simple as post pill amenorrhoea, and a few more questions on the defendant's part would have then put the defendant on further notice that a full gynaecological history was required and that a recommendation for a Pap smear was advisable. In this respect I conclude that the defendant failed to reach the standards appropriate to the ordinary and reasonable general practitioner in Canberra in 1987. Subject to proof of damage, the plaintiff is entitled to judgment.

Causation 53. It appears from the medical evidence in the present case that the result of a Pap smear is not a final diagnosis. Pap smears result in a "false negative" rate of about 10 percent. A woman whose Pap test does not reveal the presence of cancerous cells cannot be completely confident that she does not have cervical cancer. That issue does not arise here because it is no longer suggested on behalf of the plaintiff that the defendant should have advised her to undergo any initial test other than a Pap smear. On the other hand, medical practice was in 1987 and is still, to initiate the investigation of possible cervical cancer by Pap smear (which can be taken by a general practitioner) and if the smear proves positive on pathological testing to refer the patient to a gynaecologist for colposcopy (a more invasive and specialised form of examination) and further pathological testing. If there is reason to refer the patient to the gynaecologist for some other cause or because there are independent signs of cervical cancer, it may be sufficient to leave the Pap test to the gynaecologist. There is nothing negligent about the practice.

54. The issue therefore arises whether, if the plaintiff had undergone a Pap smear as a result of her visit to the defendant on 20 March 1987, the result would have disclosed the existence of a cancerous growth of the cervix. Whilst I accept that it was likely, despite the "false negative" rate that the presence of any cancerous cells would have been indicated by a positive result, the plaintiff must prove that the cancerous cells were there to be detected. This is a difficult medical issue and one on which the Court is almost entirely reliant on medical opinion. There is no much room here for the issue to be decided by the application of "common sense".

55. A tumour (sometimes called a lesion) does not necessarily become cancerous. It becomes such when the cells (for unknown reasons) become disorganized (anaplastic) and invade surrounding tissue. In the pre- cancerous state it is sometimes called a carcinoma-in-situ (CIN) and in the invasive or cancerous stage it may be referred to as a carcinoma. The stages of progress are from CIN 3 (still not invasive) to micro-invasion, cervical carica (or carcinoma) IA and cervical cancer 1B.

56. Professor Crandon considered that if the lesion was pre-cancerous or developed only to the extent that it was regarded as micro- invasive, then it could be removed entirely by cone-biopsy. In his view the extent to which the carcinoma had invaded the stroma, or adjacent tissue of the lining of the cervix, was the critical factor. The post operative pathology report indicated a depth of invasion of the stroma of 0.5 mm as at 20 November 1987. On that basis Professor Crandon believed that a complete excision of the tumour before the plaintiff's pregnancy (that is, before 2 September 1987) was likely to have been successful without the need for hysterectomy and without affecting fertility "to any extent". Professor Crandon rejected the view that it was the overall size of the lesion upon which the decision was to be made whether or not to restrict the intervention to cone-biopsy. He further rejected the view that the overall size of the lesion in November 1987 indicated that a radical hysterectomy would have been required, either then or previously, although he conceded that some of his colleagues would have treated it in that way. In other words, Professor Crandon did not regard the decision of Dr Murray to proceed to hysterectomy as outside the bounds of a proper professional judgment. Professor Crandon did not accept that guidelines applied by the profession in 1987 required a hysterectomy if the depth of the tumour was 3 mm or more.

57. However, Professor Crandon was unable to say how big the tumour would have been in April or May 1987 or whether, if the plaintiff had presented to him then, he would have carried out a hysterectomy or more conventional treatment. He was able to say only that if he had carried out colposcopy then which suggested micro-invasion then he would have treated it by cone biopsy.

58. Dr Wain said in cross-examination that "by anybody's definition" a lesion of 3 centimetres (sic) in depth could not be regarded as micro- invasive. Mr. Crispin, QC confronted him with a passage from a text book published in 1994 in which a definition of a micro-invasive lesion included reference to invasion of the stroma to no more than 3 millimetres (sic) and in which lymphatic or lythascular involvement is not demonstrated. Later in the same text book the author says that the width and breath of the invasive area is important, but important for what purpose is not clear. Dr Wain agreed that the November pathology did not make it possible to determine whether there was lymphatic invasion six months earlier. Dr Wain mentioned an international definition of a micro-invasive cancer gives the dimensions of 7mm (presumably in diameter) in length by 5 mm in depth. That was a definition that was subject to debate but according to Dr Wain was certainly an upper limit which most medical practitioners would use. The source, or the authority, of the definition was not identified.

59. Dr Murray declined to express an opinion on the likely size of the tumour in March 1987. It is clear, however, that the size of the growth and the nature of the cells by November 1987 were such that he did not consider it worthwhile to approach the matter by exploratory surgery, nor apparently did the panel at the King George V Memorial Hospital, whose approval was necessary before Dr Murray could proceed.

60. Dr Hosking's view was that either the Pap smear was "undercalled" at CIN3 and cervical carcinoma was already present on 3 September, or the Pap smear was correct and abnormally rapid progress took place between 3 September and 17 November to convert a tumour at stage CIN 3 to an invasive carcinoma at stage 1B. In the first instance, colposcopy carried out at any time from 3 September onwards should have shown carcinoma, with likely treatment and outcome being no different from what in fact transpired. In the second instance, according to Dr Hosking, assuming colposcopy showing a tumour at stage CIN 3 in September, treatment would have been conservative in the light of the plaintiff's pregnancy, with a follow-up colposcopy in two months time which, again, would have shown invasive carcinoma at stage 1B with treatment and outcome identical to what in fact happened. Dr Hosking did not allow for successful curative conservative treatment by cone biopsy. In any event, Dr Hosking's "second instance" was contradicted by Dr Wain, whose opinion I accept, that so-called rapid advance cervical cancer does not occur.

61. Whilst it is impossible on the evidence to calculate the extent of any growth that took place between April or May and November, the inference is to be drawn that the lesion could not have been smaller in size or less invasive in nature at the end of the period than it was at the beginning. Hence it may be taken that if Professor Crandon saw fit to proceed by way of cone-biopsy on a micro-invasive lesion in November, he would have done so on a no larger and no more invasive lesion earlier in the year. But the plaintiff is unlikely to have come under the care of Professor Crandon. It was likely that, assuming that she had submitted to a Pap smear by the defendant which proved positive, assuming that she had been referred by the defendant to Dr Hosking and assuming that the tumour was observable on colposcopy at that time (which is by no means certain), and assuming that she would then have been referred to Dr Murray, it does not seem to me that the plaintiff has established that the size and condition of the tumour was likely as to lead Dr Murray to decide to recommend cone-biopsy rather than hysterectomy. After all, drastic as the hysterectomy procedure must be for a woman aged 27 years and planning to become pregnant, it appears to have been the only option to suggest itself to Dr Murray or the panel at King George V Hospital. Presumably, if they had allowed the cancer to run its course she would have died. It has not been demonstrated that if the plaintiff had submitted to a Pap smear on the defendant's advice, she was likely to have had the opportunity of having the tumour removed by cone-biopsy whilst it was still in a micro-invasive or pre-cancerous state.

62. Accordingly, on the issue of causation, the plaintiff has not been able to demonstrate that, by reason of the defendant's omission, she avoided the need for the hysterectomy that she underwent in November 1987.

63. As an alternative, it was submitted on behalf of the plaintiff that if the plaintiff has not demonstrated that Dr Murray was likely to have proceeded by way of cone-biopsy if the Pap smear had been done in April or May 1987, then she should still be compensated for the loss of a chance that she might have been treated successfully by some other surgeon who, like Professor Crandon, was more inclined to conservative treatment. Reliance was placed on Malec v. J.C. Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638 in which it was said in the leading judgment at p.643: "Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.

64. Malec was a case concerned with assessment of damages and in particular the assessment of the value of loss of earning capacity. In order to make that assessment it was necessary for the Court to have regard to past hypothetical events such as what the plaintiff might have been capable of earning from the time of injury to the date of trial on the hypothesis that injury had not occurred, and in the case of continuing incapacity, what the plaintiff might still be capable of earning in the future and what the plaintiff might have been capable of earning in the future if not injured. As the High Curt decided, the degree of probability of occurrence of hypothetical events relating to those matters must be taken into account and the award of damages for the loss is to be adjusted accordingly in order to reflect the degree of probability.

65. However, the question in the present case is not one of assessment of damages but essentially a question of causation of the sort of damage that the plaintiff claims followed as a consequence of the defendant's negligence. This distinction was drawn in Hotson v. East Berkshire Area Health Authority [1987] 1 AC 750. In that case the plaintiff had suffered an injury to his foot before consulting the defendant. The defendant delayed in treating the condition which subsequently became necrotic. The evidence established that if the defendant had treated the foot promptly there was a 25 percent chance that necrosis would have been avoided but still a 75 percent chance that necrosis would have developed anyway. The House of Lords rejected the argument that the plaintiff's damages were to be restricted to the loss of the 25 percent chance that he would have recovered but for the defendant's negligence and ruled that as the plaintiff had proved, on the balance of probabilities, that a negligent failure to diagnose and treat promptly had materially contributed to the injury, the defendant was not entitled to a discount for the full measure of damage to reflect the chance that, even given prompt treatment, the same damage might still have occurred.

66. Lord Mackay stated at p.785: "In the circumstances of this case the probable effect of delay in treatment was determined by the state of facts existing when the plaintiff was first presented to the hospital. It is not, in my opinion, correct to say that on arrival at the hospital he had a 25 per cent chance of recovery. If insufficient blood vessels were left intact by the fall he had no prospect of avoiding complete avascular necrosis whereas if sufficient blood vessels were left intact on the judge's findings no further damage to the blood supply would have resulted if he had been given immediate treatment, and he would not have suffered the avascular necrosis. As I have said, the fundamental question of fact to be answered in this case related to a point in time before the negligent failure to treat began. It must, therefore, be a matter of past fact. It did not raise any question of what might have been the situation in a hypothetical state of facts. To this problem the words of Lord Diplock in Mallett v. McMonagle [1970] AC 166, 176 apply: 'In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain.' In this respect this case is the same, in principle, as any other in which the state of facts existing before alleged negligence came into play has to be determined. For example, if a claimant alleges that he sustained a certain fracture in a fall at work and there is evidence that he had indeed fallen at work, but that shortly before he had fallen at home and sustained the fracture, the court would have to determine where the truth lay. If the claimant denied the previous fall, there would be evidence, both for and against the allegation, that he had so fallen. The issue would be resolved on the balance of probabilities. If the court held on that balance that the fracture was sustained at home, there could be no question of saying that since all that had been established was that it was more probable than not that the injury was not work-related, there was a possibility that it was work-related and that this possibility or chance was a proper subject of compensation."

67. Lord Mackay at p.789 quoted from a Canadian decision in which one of the judges made a remark pertinent to the present case: "The combination of the loss of a loved one to cancer and a doctor's negligence in diagnosis seems to compel a finding of liability. Nonetheless, justice must be dealt with an even hand. To hold a defendant liable without proof that his actions caused plaintiff harm would open up untold abuses of the litigation system."

68. Lord Ackner at p.792 said that compensation for loss of a chance only cannot arise where there has been a positive finding that before the duty arose the damage complained of had become inevitable.

69. The House of Lords' decision in Hotson has been the subject of academic criticism. Professor Fleming in (1991) 70 Canadian Bar Review at 141 accuses their Lordships of using a sleight-of-hand in order to avoid the inquiry into what would have happened if the treatment had been prompt. He suggests that Malec and Hotson are in conflict and looks forward to "the next move in the casualty game".

70. Litigation for serious personal injury is more than a game and difficult issues must be grappled with and solutions arrived at. An inquiry has not been avoided into what would have been the outcome for the plaintiff if a Pap smear had been performed pursuant to advice given by the defendant on 20 March 1987. I do not think that there is conflict between Malec and Hotson for reasons given, but even if the Malec approach is the correct one to apply in the circumstances, I do not see how in practical terms it can be applied unless there is some evidence before the Court upon which the Court can assess the degree of probability of the hypothetical event occurring, or unless the circumstances are a matter of common knowledge and experience. If, for instance, where a plaintiff suffers injury giving rise to a permanent physical disability, a defendant, for the purpose of assessment of damages, can rely upon a contingency that the disability might have occurred in any event, but can do so only by pointing to something particular about the plaintiff's situation, for instance, pre-existing degenerative disease or employment in an extra-hazardous occupation. Otherwise the Court is left to act on its own knowledge that all human beings are subject to the vicissitudes of life and the certainty of death. In the present case there is nothing in the expert evidence to assist the Court in assessing the degree of possibility that a positive Pap smear performed in April or May 1987 might have been followed by successful conservative treatment of a tumour which might or might not have been cancerous. Further, the question is not one which the Court can answer acting upon matters of common knowledge and experience.

71. In the present case, the plaintiff has not demonstrated on the balance of probabilities that the hysterectomy would have been avoided by the defendant advising her on 20 March 1987 to have a Pap smear.

72. I interpolate here that it was submitted on behalf of the defendant that the plaintiff has not proved that she would have accepted or acted on the advice to have a Pap smear. There is some substance in this submission as far as the evidence goes. The plaintiff's record at the health centres shows some lack of enthusiasm in keeping appointments and following through with recommended treatment, including an earlier reference to Dr Hosking. The plaintiff was not asked any questions about what she would have done if informed by the defendant of the risks of cervical cancer and advised by the defendant to have a Pap smear. As a matter of law, it appears that at least prior to the Evidence Act 1995 (Cth) such questions and answers would have been admissible (e.g. Nagle v. Rottnest Island Authority [1992] HCA 43; (1993) 177 CLR 423) but it is not clear that they were necessary. Where a precaution is recognized as necessary and injury is suffered of a kind that the precaution is intended to prevent, then the Court can and ordinarily will draw the inference of cause and effect: see Hotson; McGhee v. National Coal Board [1972] UKHL 7; (1973) 1 WLR 1. This principle is applied without question in employment injury claims where lack of warning or lack of instruction is regarded as materially contributing to and therefore causative of, any injury that the warning or instruction is designed to avoid, despite the frequency with which many persons ordinarily ignore warnings and overlook instructions.

73. I also interpolate that although contributory negligence was pleaded, it was not argued and whilst it might have been suggested that the plaintiff displayed ignorance about health issues likely to affect her, it has not been shown that she failed to exercise reasonable care for her own safety.

74. However, although the plaintiff has not proved that a hysterectomy was likely to be avoided if she had had a Pap smear in April or May 1987, the hysterectomy that she in fact underwent was in one very important respect more serious and damaging to her than one that might have been carried out earlier in the year. The fact that the hysterectomy in November occurred at a stage when she was already pregnant meant that she suffered a loss greater than which she might have suffered if the hysterectomy had been performed prior to her becoming pregnant in September. As events transpired, she lost not only her capacity to bear children, she lost the child she was then carrying. The distress that was clearly suffered by her was all the greater. It is a difficult matter to assess a monetary figure restricted to the loss which flowed from the defendant's omission and the process must be in some respects quite arbitrary. Had the plaintiff succeeded in showing that it was probable that a Pap smear would have avoided a hysterectomy altogether, the level of current awards of damages in Australia in such cases would have indicated a likely award to the plaintiff of about $100,000. Much of the distress that she did suffer, however, was likely to have been suffered in any event if the hysterectomy had been performed before she became pregnant. As it was, the plaintiff came under the care of Dr Lee, a psychiatrist, but she was sufficiently recovered and the domestic scene was sufficiently stable for her and her husband to make successful application for the adoption of twin girls in January 1992. She and her husband subsequently parted company and although she claims that the marriage broke up because of the stress occasioned by her hysterectomy and termination of pregnancy, I am not convinced that it was sufficiently related to the defendant's negligence so as to attract damages. The marriage was on shaky ground when she first saw the defendant and although it is arguable that the events culminating in the hysterectomy were the catalyst that finally put an end to the marriage relationship, I am not convinced that a sufficient nexus has been established to connect the marriage breakdown with the defendant's negligence.

75. The plaintiff's out-of-pocket expenses and loss of time from work would have been occasioned even if the hysterectomy had been carried out earlier in the year.

76. In the circumstances, a relatively modest sum of general damages only is recoverable. I award the sum of $30,000.

77. The plaintiff is to have judgment for $30,000. Unless the parties wish to be heard I propose to order that the defendant pay the plaintiff's costs on the full Supreme Court scale.