Charmaine James v Roger Heaton [1998] ACTSC 144 (13 February 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Trespass
- Assault and trespass to the person - Whether defendant doctor
performed excessive number of ante natal internal examinations on
plaintiff -
No issue of principle.

  

   Contract - Breach of implied term in contract of retainer between doctor
and patient -
No issue of principle.

  

   Damages - Assessment - Personal Injury - Psychological Injury - No expert
evidence - No Issue of Principle.

  

  

   CANBERRA, 17-18 November 1997 (hearing), 13 February 1998 (decision)

   #DATE 13:2:1998

  

   Counsel for the Plaintiff:
Mr G Lunney

   Instructing Solicitors: Snedden Hall & Gallop

   (62018900)

  

   Counsel for the Defendant: Mr J Poulos QC

   Instructing Solicitors: Hill & Rummery

   (62489188)

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for
the defendant.

   2. The plaintiff pay the defendant's costs.

  

  

   MASTER T. CONNOLLY

  

   This is a claim for damages
based on breach of contract and trespass and
assault. The plaintiff claims that she attended the defendant, who practices
medicine
in the Australian Capital Territory as a specialist obstetrician and
gynaecologist, on 9 occasions from May 1992 to September 1992
for the purposes
of ante natal care in relation to the plaintiff's first pregnancy. She claims
that on each of these visits she was
subjected to an internal examination. The
plaintiff's claim is that such a regular course of internal examinations is
improper, and
so amounts in law to both a breach of contract, being in breach
of an implied term that the defendant would carry out his duties
with all due
professional care, skill and diligence and without departure from the
honourable conduct expected from a specialist
medical practitioner, and also
to a trespass to the person and an assault upon the plaintiff.

  

   The defendant accepts that
it would be inappropriate to perform an internal
investigation on each consultation during the process of antenatal care for a
normal
pregnancy. The defendant denies that he performed internal examinations
on any visits except the attendance on 17 September 1992,
towards the end of
the plaintiff's pregnancy, when it was appropriate to determine how the child
is presenting to the pelvis and
how the cervix is ripening. The defendant
recorded this internal examination on his patient record card. No other
internal examination
is recorded on this card. A copy of this card was
provided to the plaintiff, and was retained by her, but was not produced in
evidence
in these proceedings.

  

   The plaintiff made no complaint to the defendant at the time, or to her
general practitioner. She claims
that she believed that the regular internal
examinations were a normal process, although she says that she complained
regularly to
her partner and to her mother. The plaintiff says that it was
only when she had a discussion with a friend at a shopping mall in
Canberra in
about September of 1994 that she came to believe that what she says had
occurred to her was wrong.

  

   A claim for
damages based on breach of contract and trespass and assault
would not normally fall within my jurisdiction as Master, and at the
commencement of these proceedings I sought counsel's submissions on the basis
of my jurisdiction. Counsel for the plaintiff argued
that the matter was
properly before me pursuant to Order 61A rule 1(f) which provides that the
Master may exercise the jurisdiction
of the Court

  

  

   "...in trials and hearings of matters which if commenced in the Magistrates
Court would have been within
the jurisdiction of that Court pursuant to the
Magistrates Court (Civil Jurisdiction) Act 1982."

   Counsel stated that it was the
plaintiff's view that any damages which may
ultimately be awarded in this case would fall within the jurisdictional limits
of the
Magistrates court, and so the action may properly be heard and
determined before me without order of a Judge. I accepted this proposition,
which was not disputed by counsel for the defendant, and the matter proceeded
to trial on Monday November 17 and Tuesday November
18 1997. At the conclusion
of the evidence counsel for the defendant requested that written submissions
be presented so as to allow
the parties the advantage of studying the
transcript before presenting their final submissions. This course was opposed
by counsel
for the plaintiff, who expressed a preference for immediate oral
submissions. Counsel for the defendant argued that this matter carries
great
implications for his client, and accordingly he argued that the submissions
should be made with the benefit of transcript which,
as the Court was fully
sitting that week could not be made available on a running basis. Given the
nature of these proceedings I
accepted this submission, and a timetable was
agreed for the preparation of written submissions.

  

   This case substantially
falls for determination on the basis of my
assessment of the evidence of the plaintiff and the defendant as to whether
the internal
examinations did occur in the manner described. The defendant's
case is simply that they did not. No attempt was made to justify
a high number
of examinations, the defendant saying that his practice was always consistent
with what was put forward by the plaintiff
as evidence of appropriate practice
- that is, a minimal use of internal examinations in the course of a routine
pregnancy. Dr Heaton's
position is that his clinical records do in fact record
the position, that is, that the plaintiff was examined on 9 occasions in
the
course of a routine pregnancy, and that an internal examination was only
performed towards the end of the pregnancy in the normal
way. Dr Heaton says
that he has no individual recollection of the plaintiff at all, and that he
relies on his cards to state what
he believed to have occurred in the course
of these consultations.

  

   It was put to Dr Heaton that his record cards were deliberately
falsified
to not record other vaginal examinations. This was denied, and nothing was
produced to back up this claim. Dr Heaton said
that his card was kept
accurately, and in duplicate. The other copy was kept by the patient, so that
when they presented to hospital
as a public patient the on-call obstetrician
would have a record of ante natal care. The plaintiff acknowledged that she
had been
provided with such a document, but had lost it. Dr Heaton said that
he had seen a pink card in the possession of an official from
the Health
Complaints Commission. He was not cross examined on this. The defendant argued
that failure to produce this card is explicable
only by the inference that it
would not have helped the plaintiff's case. The plaintiff argued that the card
was lost, and that if
the defendant felt it was important, they could have
sought to subpoena it. This, it is argued, should lead to an inference that
it
would not assist the defendant's case.

  

   The only significance I would attach to the non production of the
plaintiff's pink
card is to refute the suggestion that the original, produced
by Dr Heaton and which he relies on for his recollection of events,
is a
forgery. This proposition was put to him and rejected. There is nothing to
persuade me that the card is other than Dr Heaton's
notes, a copy of which was
provided contemporaneously to the plaintiff.

  

   The plaintiff was born on 28 March 1970. She has
been a serving police
officer in the Australian Federal Police since about 1991. She married Mr
James Alford in 1996, but had been
living with him since about 1991. At that
time he was also a police officer in the Australian Federal Police. Ms James
fell pregnant
in early 1992 while living in Sydney. She consulted a general
practitioner, and was referred to a specialist, Dr Kovacs, whom she
saw in
February 1992. She says that he advised a number of tests, and performed an
internal examination. The plaintiff had a follow
up visit with Dr Kovacs in
March, and by that time knew that she was to be transferred to Canberra. Dr
Kovacs gave her a referral,
and upon arriving and settling in Canberra the
plaintiff attended a local general practitioner, Dr Bremner. The plaintiff
says that
she was having no difficulties with her pregnancy at that stage.

  

   The plaintiff says that in early May 1992 she experienced
a stitch type
pain in her lower abdomen, and consulted Dr Bremner on 6 May. At that
consultation she was referred to the defendant.
On the next day she attended
work but experienced pain, and was taken by a police colleague to the Accident
and Emergency section
of Woden Hospital. She was examined by a medical
practitioner, who she says performed an internal examination. She says that
after
that was concluded there was quite an amount of bleeding. A note from
Woden Valley Hospital to Dr Heaton dated 7 May 1995 records
her attendance and
complaint of pain, and says that on vaginal examination there was "small
abrasion" with bright blood loss.

 


   The plaintiff was discharged from hospital, and the next day, 8 May 1992,
rang Dr Heaton's rooms and obtained an appointment
for that day. She says that
she was still in pain and still bleeding, and that she attended Dr Heaton's
rooms accompanied by her
husband James Alford. Ms James says that she handed
Dr Heaton the referral, and said that she was concerned about the bleeding.
She
says that he said that he would conduct an internal examination, and that
he asked her to hop up on the bed and take her pants off.
She says he then
conducted the internal examination, after washing his hands and putting a pair
of gloves on. She says that she felt
uncomfortable during this examination,
which lasted about 30 seconds, and that the defendant told her to try to
breathe and relax.
She says that he advised her not to worry about the
bleeding, and that the pregnancy was progressing well. She made a further
appointment
for 6 July.

  

   Mr James gave evidence that he attended this consultation, and accompanied
his wife into Dr Heaton's rooms. He
said that there was general conversation
and introductions, and that then Dr Heaton said

  

  

   "I need to do an internal examination",

   and that the plaintiff then got on to the table. He could not see what
occurred on the table, and a curtain was drawn.

  


  Mr James conceded in cross examination that he could not recall any
discussion about bleeding at this first consultation. Counsel
for the
defendant pointed out this contradiction, arguing that

  

  

   "...it is strange indeed inconceivable that the plaintiff
had not disclosed
to her husband that she was concerned about bleeding at the time she had the
examination."

   There is a difficulty
in reconciling this evidence, as on the plaintiff's
case the bleeding was significant, and was the reason for the internal
examination,
whereas the plaintiff's partner has no recall of this. The
defendant's evidence was that, based on his cards, he recorded no vaginal
bleeding at the time of the examination.

  

   The defendant was cross examined on this point. It was put to him that the
letter
from Wooden Valley Hospital referring to blood loss would have led him
to conduct an examination to check on that injury. Dr Heaton
said that this
was not so, as the letter provided an explanation for what had occurred, which
made it clear by the note "No PV loss"
that the bleeding, when it did occur,
was not from the cervix, and that as bleeding was no longer occurring (based
on his record
of nil blood loss) he would have no need to depart from his
normal practice and conduct an internal examination at this time.

 


   The plaintiff said the conversation at this first consultation was about
the bleeding. She did not recall conversation about
an ultrasound, which the
records show had been conducted on 14 April and would have assisted Dr Heaton
in demonstrating the health
of the baby and the estimated date of confinement.
Dr Heaton, by reference to his notes, indicated that this would have been an
important
part of this conversation.

  

   The plaintiff returned to Dr Heaton's rooms for a consultation on 6 July.
Her husband accompanied
her, but remained in the waiting room rather than
accompanying her into the consultation room. She says that Dr Heaton enquired
about
the bleeding, and then asked her to hop onto the table and to pull her
pants down. She says that Dr Heaton then put on a pair of
gloves, and
conducted an internal examination. She says that on this occasion he used an
instrument to conduct the internal examination.

  

   Dr Heaton again relied on his notes and his recollection from the notes was
that only the one internal examination was performed.

  

   A further consultation occurred on 27 July. On this occasion the plaintiff
attended on her own. She says that she was asked
to hop on the table, and that
Dr Heaton put on a pair of gloves in a very "dramatic way". When pressed about
this she said

  


 

   "...it was like he was showing me that he was putting them on, and it was -
he put his hands right up and was putting them
on like that."

   Dr Heaton again relied on his notes in respect of this consultation.

  

   The plaintiff again attended on 24
August, again by herself. He said that
she was asked to hop on to the table, and that Dr Heaton felt around the
outside of her stomach,
and then asked her to pull her pants down, and
conducted an internal examination with his hands. Again she said he put on a
pair
of gloves.

  

   The next consultation was on 31 August, and the plaintiff was unsure as to
whether she attended on her own or
with her husband. She described the same
sequence, of being asked to hop onto the table, pulling her pants down, Dr
Heaton putting
on gloves and then conducting an internal examination, using
his hands. She described this as taking about 30, 40 seconds to a minute.
The
plaintiff says that the same sequence of events occurred on the examination of
10 September.

  

   On 17 September the plaintiff
attended with her mother, who had come to
Canberra to be with her daughter for the birth. The plaintiff says that Dr
Heaton again
conducted an internal examination. Dr Heaton agrees that on this
occasion an internal examination was performed. His cards records
"V/E". This
is the only record of an internal examination. Dr Heaton said that this would
normally be performed at this stage in
a pregnancy near to delivery to
determine the position of the child and the state of dilation of the cervix.

  

   The plaintiff
again attended Dr Heaton's rooms on 23 September, this time
with her husband. She described the same process of being asked to hop
on to
the table, removing her underpants, and then observing Dr Heaton put on a pair
of gloves and conduct an internal examination.

  

   Dr Heaton, relying on his notes, says that an internal examination was only
performed on the visit of 17 September, and that
that would have been the only
occasion when an internal examination was indicated. He pointed out that his
record for the visit of
23 September had an aide memoir written below it in
the line that would be for the next visit, saying V/E. He said that this was
written to remind him that, if the plaintiff had not successfully given birth
and attended again in a week he would intend to conduct
another internal
examination. In fact the plaintiff successfully gave birth to her first child
two days after this consultation,
and the plaintiff never consulted Dr Heaton
again.

  

   Dr Heaton in his evidence stated that he had no independent recollection
of
the plaintiff, and was relying on his notes and his normal practice. He has
been conducting a practice as a specialist gynaecologist
and obstetrician at
the John James Hospital in Canberra since 1985. He obtained his undergraduate
medical training at the University
of New South Wales, and undertook clinical
training at St George Hospital at Kogarah and then obstetric training at the
Women's Hospital
in Crown Street in Sydney. He passed his obstetrics exams
there, and then went to Britain where he undertook further training and
obtained membership of the English college. He is a Fellow of the Royal
Australian College of Obstetricians and Gynaecologists and
has recently been
elevated to Fellow of the Royal College of Obstetricians and Gynaecologists in
Britain. He is an examiner for the
Australian College, and is chairman of the
College in the ACT. Since 1988 he has also worked as a Visiting Medical
Officer at Woden
Valley Hospital.

  

   Dr Heaton described the process by which he conducts ante natal
examinations. He said that a patient is
usually referred at about the 14th to
16th week of pregnancy by a general practitioner. The first visit usually
lasts about 15 minutes,
during which a history is taken and an examination
performed. Subsequent examinations, which are monthly until the 28th week, and
then fortnightly until the last month of the pregnancy, when they become
weekly, last about 5 or 6 minutes only for normal pregnancies.
He described
his practice as listing about 10 to 12 patients per hour during his ante natal
clinics. He said that the time and nature
of the consultation does not vary
depending on whether the patient is an insured or uninsured public patient.
Ante natal obstetric
patients were seen on about 50 to 60 occasions a week in
1992, usually on Mondays and Thursdays, but Dr Heaton said that this could
alter if emergencies popped up. As well as these obstetric patients Dr Heaton
would see about 10 new and 30 follow up gynaecological
patients in a normal
week.

  

   Dr Heaton said that he agreed with a report prepared by Professor Bennett
and tendered as part
of the plaintiff's case. Professor Bennett is head of the
school of Obstetrics and Gynaecology at the University of New South Wales.
He
was not required to attend to give evidence. His report stated that

  

  

   "In general I believe that in a normal pregnancy
one digital examination is
usually all that is required. On occasions a digital assessment of a cervix is
required at the end of
pregnancy if consideration is being given to induction
of labour with intra vaginal Prostaglandins. Certainly I would believe that
a
vaginal examination performed at the first visit is quite normal practice but
in the absence of any complicating factors there
is, as Dr Heaton says, no
indication to perform repeated vaginal examination. There are hosts of reasons
that would justify a greater
number of digital examinations. These would vary,
as indicated by Dr Heaton with whether this was a first pregnancy or not,
whether
there had been any question of cervical incompetence, whether there
had been any bleeding from a cervix etc. It would seem to me
from Ms James
document that once her bleeding at 19 weeks had settled the pregnancy remained
uncomplicated and I would therefore
have to say that I am unaware of any
justification for any great number of digital vaginal examinations. I believe
it would be inappropriate
to have vaginal examinations performed at the time
of each consultation in the manner described by Ms James in the absence of any
obvious indication."

   Dr Heaton said that this report concurs with his practice. He said

  

  

   "The most common reason I
would perform an internal examination is
somewhere very late in the pregnancy, usually the week preceding the due date,
to ascertain
whether the foetal head is the presenting part. To ascertain how
that presenting part is fitting within the maternal pelvis and to
ascertain,
as best I can, the shape of the maternal pelvis, any likelihood that there
could be difficulty in passing the head through
that pelvis and to ascertain
how soft and changing the cervix is."

   Dr Heaton said that his practice was to wear a glove on the
right hand only
for internal examinations. He said that, being right handed, he never wore a
glove on the left hand when conducting
internal examinations, which are
conducted with the dominant hand only. He said that he did not wear gloves
when conducting external
abdominal examinations. The plaintiff's evidence was
that she observed the defendant putting on a pair of gloves on each occasion,
which Dr Heaton says is not his practice.

  

   Dr Heaton also gave evidence as to his practice in conducting examinations
which
is inconsistent with the process described by the plaintiff. She said
that on each occasion she was asked to hop onto the couch,
and then to remove
her underpants. Dr Heaton said that, where an external abdominal examination
only is to be performed, he would
assist a patient onto the couch, and then
ask them to pull up their shirt or dress, and cover their underwear with a
white sheet.
When an internal examination is to be performed, he said that he
would ask a patient to remove their underwear before getting on
to the couch,
and then ask them to sit on a special waterproof sheeting, and then place a
white sheet over the abdomen. He said that
he could never recall asking a
patient to get on to the couch and then remove their underwear. He said that
this was because

  

  

   "...its awkward to examine someone up on the couch if they've got underwear
around their knees. They cant draw their legs
up so they remove their
underwear prior to that."

   Dr Heaton was cross examined both as to the practice of only wearing one
glove
and the practice of asking a patient who is to undergo an internal
examination to disrobe before alighting the examination couch.
He maintained
his position on both issues. In relation to the removal of the underwear, the
following exchange occurred:

  

  

   "Well, it really would matter not whether they removed their underwear,
their underpants, while standing beside the couch or
on it?--Yes it does.
They're heavily pregnant a lot of these women. They don't move very easily.
They find it very awkward to reach
around their abdomen to get their underwear
down over their large thighs, over their swollen feet. Its not easy for them
at all lying
down. They do it standing up, that is easy."

   Counsel for the defendant submitted that this is a common-sense explanation
that
does not correlate with the sequence of events as described by the
plaintiff. On cross examination on this point the plaintiff said
that she
could have taken off her pants before getting on to the couch. When pressed -

  

  

   "Did you take them off standing
up, or did you take them off lying down,
what is the evidence that you are going to give now,"

   she said

  

  

   "Probably
both."

   Counsel for the defendant also pointed to inconsistency relating to the
evidence as to the use of gloves, and a further
matter concerning the taking
of blood pressure, which Dr Heaton says is always taken after a patient's
abdomen has been examined.
Dr Heaton says this is because the combination of
the effort of climbing onto the bunk and the possibility that a patient may
have
been rushing to attend an appointment can lead to a falsely high reading
if it were done first thing after a patient gets on to the
bed. It is better
to allow a patient a few moments to rest during the abdominal examination, and
then take a reading. This was not
the sequence of events described by the
plaintiff which was

  

  

   "General questions. Took blood pressure. Asked me to hop
onto the table. He
felt the outside of my stomach and also did the internal examination."

   Dr Heaton's notes recorded that the
blood pressure taken at the various
examinations was normal. He gave evidence that the blood pressure was within
normal range, and
that there was nothing of significance in the blood pressure
readings that would indicate apprehension on the part of Ms James. Her
evidence was that she was apprehensive, uncomfortable and anxious during these
examinations because of the internal examinations
which she says were
performed.

  

   The plaintiff did not complain about the examinations to her general
practitioner or to anyone
at the hospital at the time of her confinement.
During her second pregnancy in 1994 she had changed general practitioners due
to
a change of location, but no complaint was made to this general
practitioner.

  

   The plaintiff says that it was only when she
had a conversation with a
friend at a supermarket in Canberra in about September 1994 that she realised
that what she says happened
to her was inappropriate. She says that up to this
point she assumed that an internal examination was a normal part of every
visit
to an obstetrician. She says that Ms Kates had been the person who had
referred her to her new general practitioner. The conversation
was along the
lines of

  

  

   "How do you like Dr Radkovic?"

   The plaintiff said that she replied that she was concerned
that he wasn't
doing his job properly because he had not conducted any internal examinations,
and that Ms Kates replied

  

  

   "Oh don't worry about it. I only had one during my pregnancy, that's all
you are supposed to have."

   The plaintiff said

 


  

   "I went into like shock. I thought, my God, Dr Heaton has done something
that he should not have. And that I'd had nine
internal examinations, and here
is somebody telling me that you are only supposed to have one, and it made me
sick knowing what had
happened and what it meant."

   The plaintiff said that this shock continued to cause her upset, and indeed
it is this that is the
basis of the claim in damages in this case. She gave
evidence that this changed her relationship with her husband. She said

  

  

   "The change was both physically and emotionally. Emotionally because I
withdrew, I felt very disgusted in what had happened
to me, very violated.
Sexually we completely stopped having any kind of sex. I didn't like and I
don't like him touching me at all,
even to the point of like kissing or
cuddling, or anything , it just makes me feel dirty and disgusting and, I
don't know, like I'm
not worthy of it whatsoever. Emotionally, because I shut
down from him we stopped talking, we stopped doing things together, we stopped
doing everything. It was like we were- instead of being together we were like
two separate people that became nothing to each other."

   The plaintiff said that this led to the breakdown of their relationship for
a period of about eight months after the birth of
their second child, but the
couple have since married, and indeed are again expecting a child.

  

   No medical or psychological
expert evidence was provided to support the
plaintiff's claims as to the impact this alleged discovery has had on her. She
acknowledged
that she had counselling from a police psychologist, Dr Blane,
after the breakdown of her marriage, and after she had put in a resignation
letter to the Australian Federal Police and then sought to have that
resignation withdrawn, but she says that she did not tell Dr
Blane about the
alleged internal examinations by Dr Heaton.

  

   Dr Blane was not called to give evidence. I find it difficult
to accept
that, if the alleged internal examinations occurred as described and caused
the emotional impact on the plaintiff that
she has described, she would
refrain from mentioning this in two counselling sessions with a psychologist
relating to her emotional
turmoil at the time which led to her resignation
from the police and her subsequent request to withdraw that resignation, which
she
now says relate to these incidents.

  

   Dr Blane's report was not tendered, but extracts were read to the plaintiff
in cross
examination. She agreed that Dr Blane's report states

  

  

   "It is also recommended that due to the unusual personal affairs
which both
James and Charmaine have shared in their workplace that they be given
necessary support to leave Canberra".

   The plaintiff
said in cross examination that it was only her now husband
who had been having an affair, with another serving police officer. Her
husband confirmed this affair, and that he left the plaintiff shortly after
the birth of their second child and moved in with this
other woman for a
period. He also acknowledged that at the time he had made allegations about
his wife having been "screwing around".
The plaintiff confirmed that such
allegations were made at the time.

  

   These matters are not pleasant to have to deal with,
but they do establish
that there was severe emotional turmoil between the plaintiff and her now
husband in late 1994 and 1995. The
plaintiff's case is that this can be traced
back to the alleged internal examinations. Yet neither the plaintiff nor her
husband
mentioned these matters in their separate counselling sessions with
the police psychologist. Mr Alford says that this was because
the sessions
were mostly about how to handle the separation and its impact on the oldest
child, but he was vague in his recollection
of what was said. The plaintiff
said that she didn't tell the police psychologist about the events which she
now says triggered the
crisis because

  

  

   "I just wanted to get my job back"

   and

  

  

   "I didn't think it was a work matter".

   These
explanations I find unconvincing. The plaintiff also said that she
did not tell the police psychologist about the matters the subject
of this
claim because

  

  

   "I didn't trust her with that".

   The plaintiff says that the woman with whom her husband was
having an
affair worked as a welfare officer with the police, and her reference to Dr
Blane can be taken to relate to the possible
link between them. Again, I am
not satisfied that this satisfactorily explains the total absence of reference
to the incidents which,
on the plaintiff's case, formed the trigger for the
subsequent problems which required counselling.

  

   The plaintiff says that
the discovery that these alleged examinations were
wrong in about September 1994 triggered the breakdown in relations with her
partner.
She said her relationship deteriorated and he started to treat her
differently, and physical intimacy ceased, and they discussed
separation,
which did occur in early 1995. The plaintiff's mother said that the first
indication she had of problems with the relationship
was when the plaintiff's
partner left. She agreed that she had been in contact with the plaintiff up to
this time, and this was a
very big shock. The defendant argued that this
evidence, which does not refer to any complaint up to early 1995 linking Dr
Heaton's
alleged examinations with the relationship breakdown, calls into
question the plaintiff's evidence on this point.

  

   The first
record of complaint by the plaintiff is contained in a letter to
the Australian Medical Association dated 12 December 1994. In this
letter the
plaintiff complained that she visited Dr Heaton on 8-9 occasions and

  

  

   "...each visit was given an internal
examination with both instrument and
digital penetration."

   During the course of her evidence she said that in fact the examination
involved only digital penetration on all but one or possibly two occasions.
Counsel for the defendant points to this as yet another
inconsistency.

  

   The plaintiff put forward no motive to explain the defendant's alleged
behaviour. Dr Heaton was not confronted
with a suggested motive in cross
examination at all. It was not put to him that he would have gained any sexual
gratification from
the alleged unnecessary examinations, nor any financial
gain. In cross examination the plaintiff agreed that Dr Heaton had never
made
any sexual advances, or

  

  

   "...suggested to you anything that indicated to you that he was interested
in you as a person
rather than a patient".

   She also denied that he had ever asked questions relating to sexual
matters. The plaintiff argues that
motive is irrelevant to the cause of action
as pleaded. While this is so, it does leave unexplained why an experienced
doctor would
act in the manner alleged.

  

   The central question for me to determine is whether Dr Heaton performed
internal examinations
on the plaintiff in the manner described on eight
occasions in 1992, the internal examination on 17 September 1992 being
conceded
by Dr Heaton and described by him as being clinically necessary. I am
satisfied that this examination fits within the bounds of appropriate
clinical
standards as described by Dr Heaton and Professor Bennett. The other eight
occasions are denied by Dr Heaton.

  

   In
a civil claim the appropriate standard of proof is the balance of
probabilities. That is to say, I am to find a fact as proven if
I am satisfied
that it is more likely than not that the fact occurred, on the basis of all of
the evidence before me. Counsel for
the defendant stressed in his submissions
that fact finding under this standard of proof must involve some consideration
of the seriousness
of the alleged facts and the nature of the material in
support. He submitted that I must be mindful of the principles laid down by
the High Court in Briginshaw v Briginshaw [1938] HCA 34;  (1938) 60 CLR 336, where Chief
Justice Latham said at 343:

  

  

   "The standard of proof required by a cautious and responsible
tribunal will
naturally vary in accordance with the seriousness or importance of the issue."

   This was further explained by Dixon
J who said at 362:

  

  

   "This does not mean that some standard of persuasion is fixed and
intermediate between reasonable
doubt required upon a criminal inquest and the
reasonable satisfaction which in a civil case may, not must, be based on a
preponderance
of probability. It means that the nature of the issue
necessarily affects the process by which reasonable satisfaction is attained.
When, in a civil proceeding, a question arises whether a crime has been
committed, the standard of persuasion is, according to the
better opinion, the
same as upon other civil issues....but, consistently with this opinion, weight
is given to the presumption of
innocence and exactness of proof is expected."

   In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66;  (1992) 110 ALR 449 the
Court (Mason CJ, Brennan, Deane and Gaudron JJ) said at 449-450:

  

  

   "The ordinary standard of proof
required of a party who bears the onus in
civil litigation in this country is proof on the balance of probabilities.
That remains
so even where the matter to be proved involves criminal conduct
or fraud. On the other hand, the strength of the evidence necessary
to
establish a fact or facts on the balance of probabilities may vary according
to the nature of what it is sought to prove. Thus,
authoritative statements
have often been made to the effect that clear or cogent or strict proof is
necessary 'where so serious a
matter as fraud is to be found'. Statements to
that effect should not, however, be understood as directed to the standard of
proof.
Rather, they should be understood as merely reflecting a conventional
perception that members of our society do not ordinarily engage
in fraudulent
or criminal conduct and a judicial approach that a court should not lightly
make a finding that, on the balance of
probabilities, a party to civil
litigation has been guilty of such conduct. As Dixon J commented in Briginshaw
v Briginshaw 'The
seriousness of an allegation made, the inherent unlikelihood
of an occurrence of a given description, or the gravity of the consequences
flowing from a particular finding are considerations which must affect the
answer to the question whether the issue has been proved.'
"

   Counsel for the defendant argued that the plaintiff's claim invites the
Court to accept that Dr Heaton has engaged in conduct
which, in the
defendant's submission, amounts to criminal conduct namely an indecent assault
and that I should bear in mind the High
Court's formulation that

  

  

   "...a Court should not lightly make a finding that, on the balance of
probabilities, a party
to civil litigation has been guilty of such conduct."

   I am satisfied that the common law approach set down in Briginshaw and
Neat
Holdings still applies under the Evidence Act 1995. Section 140 of the Act
provides the standard of proof to apply in a civil matter. The section
provides :

  

   "(1) In a civil
proceeding, the court must find the case of a party proved
if it is satisfied that the case has been proved on the balance of
probabilities.

   (2) Without limiting the matters that the court may take into account in
deciding whether it is so satisfied, it is to take into
account:

   (a) the nature of the cause of action or defence; and

   (b) the nature of the subject matter of the proceeding; and

   (c) the gravity of the matters alleged."

  

   It is apparent from the wording of this section, and the Law Reform
Commission
Reports which led to the enactment of the Uniform Evidence Act that
this provision was intended to retain the common law position. I note that the
Commonwealth Attorney General's Department commentary
of the Evidence Act 1995
states expressly

  

  

   "Subsection 140(2) provides the Briginshaw variable standard of proof"

   (p129. See also Odgers, Uniform
Evidence Law (2nd ed) p255).

  

   Having regard to all of the evidence before me, and taking into account
those matters set out
in Section 140 of the Evidence Act , I am not satisfied,
on the balance of probabilities, that the events described by the plaintiff
did occur. I reach this conclusion
having considered the inconsistencies in
the evidence set out earlier in these reasons, and taking into account also
the absence
of any explanation for the defendant's alleged behaviour.

  

   It follows that there must be judgment for the defendant, with
costs.