CATCHWORDS NEGLIGENCE - causation - malignant melanoma discovered after injury - conflict of medical evidence as to possibility of causal connexion. PRACTICE AND PROCEDURE - coscs - Jate payment into court —- reasonable time to consider. WALTRAUD FUDERESR v COMMONWEALTH OF AUSTRALIA No. ACT G31 of 1983 Woodward, Kelly and Neaves JJ. Canberra 5 December 1983 IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G31 of 1983 DISTRICT? REGISTRY GENERAL DIVISION BETWEEN: WALTRAUD FUDERER Appeliant and COMMONWEALTH OF AUSTRALIA Respondent ORDER JUDGES MAKING ORDER : Woodward, Kelly and Neaves Ju. DATE OF ORDER 5 December 1983 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The order for costs in the Supreme Court be set aside and the question rcemitted to the learned trial judge for further consideration. 2. Otherwise the appeal be dismissed, with costs. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G3l of 1983 DISTRICT REGISTRY GENERAL DIVISION BETWEEN: WALTRAUD FUDERER Appellant and COMMONWEALTH OF AUSTRALIA Respondent CORAM: Woodward, Kelly and Neaves JJ. DATE: 5 December 1983 THE COURT REASONS FOR JUDGMENT This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory by which the appellant was awarded damages of $35,675.01 for personal injury. The respondent was ordered to pay the appellant's costs up to the date of a payment into Court made on 5 May 1983. The appellant was ordered to pay the respondent's costs after that date. The main ground of appeal is that the trial judge "erred un holding that a malignant melanoma suffered by the appellant was not caused by or aggravated by the fall at work on 22 May 1975 or subsequent medical treatment." As the appeal proceeded it became clear that the words "caused by or" could safely be omitted from the ground - possible aggravation was the only issue. A second ground of appeal 1s that the damages awarded for the appellant's injuries were inadequate even if the aggravation of the melanoma could not properly be included. The orders for costs are also challenged. The evidence relevant to the issue of causation may be summarized as follows. The accident happened when a chair upon which Mrs. Fuderer attempted to sit collapsed, so that she fell under a desk, hitting her right side. This occurred on 22 May 1975. On 26 May 1975 she consulted her general practitioner, Dr. Ingram. He found marked bruising of the right arm and a flexion extension injury to the neck. When he saw her again on 3 June 1975 he noted marked swelling of the right arm with parasthesia. X-ray of the neck on 4 June 1975 showed extensive osteo-arthritis which had, in Dr. Ingram's opinion, been aggravated by her fall. The appellant was referred to an orthopaedic surgeon, on 9 June 1975. She was then complaining of pain in the right neck-shoulder angle radiating down the whole of the right arm with occasional pins and needles in the right hand and a strange feeling of parasthesia and burning over the right side of her face. She was not using the arm and this had caused it to become moderately swollen. She was emotional and agitated. She had a full range of movement of the right shoulder. Further rest failed to alleviate her condition and she was admitted to the Woden Valley Hospital for traction from 25 June to 12 July 1975. This involved securing under her chin a sling to which was connected a twelve pound water bottle used to stretch her neck. The treatment was very painful but eventually effected some improvement. During the course of the treatment she noticed a lump the size of a hen's egg in her neck. It was described in a medical report as "an unrelated mass in her right parotid gland". She was given medication for the lump which completely disappeared in a day or two. Discharged from hospital on 12 July 1975, she was back on 14 July for appropriate and successful treatment of a deep venous thrombosis acknowledged to be due to the fall. She was discharged from hospital on the second occasion on 8 August 1975. Her neck was still very painful. She began to receive physiotherapy treatment. Then, in October 1975, she again noticed a lump in her neck. She went immediately to see Dr. Ingram. He saw her on 31 October and observed for the first time a small diffuse swelling on the right side of her neck in the same general area where the swelling had appeared when she was first in hospital. In spite of treatment, the lump persisted and the doctor recommended surgery. Mrs. Fuderer refused to see a surgeon although the small pea-sized lump was painful and seemed to be growing. In March 1976 a surgeon performed a fusion operation on the neck, which was still very painful as a result of her fall, and afterwards referred Mrs. Fuderer to Dr. Fleming, a general surgeon, for advice about the lump which, she said, had become bigger and more painful after the operation. Dr. Fleming also recommended surgery, but Mrcs. Fuderer would not accept this combined medical advice until the lump had become much larger by September 1976 and, after radio-therapy treatment, surgery was performed in February 1977. Its consequences for Mrs. Fuderer were by now unavoidable but very serious. The learned trial judge described her present plight, resulting largely from this surgery, as pathetic. The medical evidence makes it clear that the melanoma, which was removed along with the parotid salivary gland and other tissues, had originated in some other place, such as the scalp, and a cancerous cell or cells from it had moved through the lymphatic vessels to a lymph node, the parotid gland. The body's defensive mechanisms had apparently destroyed the primary melanoma, but not the secondary or metastatic tumour. Its presence in the parotid gland could not have been caused by Mrs. Fuderer's fall or iater treatment. Once melanoma cells were established in the gland, there could be no ultimate treatment for them other than surgery and, because a melanoma 1s such an aggressive cancer, the sooner that was carried out the better. However melanomas are very individualistic in their behaviour, and it is possible that the melanoma cells in this parotid gland could have lain quiescent for a considerable time before multiplying to form a noticeable tumour. The vital question which the learned trial judge had to consider was whether Mrs. Fuderer's fall, or more likely her resulting neck traction, or the general distress caused by both, had aggravated her existing cancerous condition in such a way as to require the surgery on the melanoma elther much earlier in her life (she was aged 50 at the time of the operation), or to a much greater degree, than would otherwise have been necessary. In other words, given that the cancerous cells were already present in the parotid gland, and were likely to multiply sooner or later in any event, could it be said that the growth of the tumour within three or four months of the neck traction, with its resultant swelling, had been caused by that traction, or by other circumstances resulting From the fall? The medical evidence on the subject was not all one way. Mrs. Fuderer's general practitioner, Dr. Ingram, spoke in broad terms about tumour growth beirng accelerated by environmental factors such as trauma or severe illness - "anything that will depress a person's immune system". The surgeon to whom Mrs. Fuderer was first sent because of the lump, Dr. Fleming, said in a report of 7 March 1978 that the parotid condition "was almost certainly aggravated by (the fall) and could well have been aggravated by the surgery which became necessary for the original injury". Although in later reports, and in some parts of his evidence, he spoke in terms of possibility rather than probability, he gave the following answers to questions put to him in cross-—examination: "Your final view, doctor, after long consideration of the matter, is that it 1s a possibility that the trauma compcising the accident and the subsequent treatment may have aggravated the melanoma?-—-~Yes, I have tried to express quite clearly there that I think it is a summation of factors which you have mentioned, plus the stress of the injury and the subsequent surgery which was required, and the nature of the ~ well, the nature of the surgery that was required, yes- What do you postulate as the mechanism whereby trauma may aggravate melanoma?---I do not think that I can produce any evidence. I do not think that anyone could produce any evidence that 1t does or that it does not, but there is a feeling in medical circles that trauma or injury or handling of a tumour can certainly aggravate it. Tf it is left alone, it does not spread or extend as quickly. So that the most you postulate is that in this case the trauma may have brought forward to some extent the time at which the melanoma required treatment?---I would say it has aggravated it, yes. It 1s the meaning of the word "aggravation". This was the strongest evidence on the central issue that counsel for Mrs. Fuderer could point to. And Dr. Fleming volunteered the fact that surgery of cancerous tumours was not his specialty, whereas Dr. Sheridan, the surgeon who operated, was "highly qualified in that particular field". Dr. Sheridan said in a written report that "if one presumed that the tumour existed prior to trauma of 22 May 1975, then some medical practitioners would contend that the worry associated with this trauma and the subsequent surgery it necessitated, could adversely influence the course of a pre-existing malignancy. However I am not aware of any hard evidence to support such a claim, the only reported cases being of individual case reports and not of properly constituted studies or trials". In giving evidence, Dr. Sheridan said that it was a distinct possibility that secondary cancers generally could be affected by psychological trauma, "but not with a melanoma". He referred to a search of the relevant medical literature which had turned up only one article which suggested any such relationship in the case of melanomas. In that case the U.S. National Cancer Institute's Department of Mental Health had attempted, "both on a retrospective and prospective basis over a twelve months period", to predict which melanoma patients would get further troubles and which would not, "and they claimed to have a fairly good correlation, but it was ..... based on the patient's own subjective assessment of different factors, and there has been no follow-up report from them." The following questions and answers then ensued, "It us quite likely, 1s it not, that 1f you have a quiescent small lump, if you like, and interfere with it in some way, it will trigger it into an accelerated growth or a growth?---This 1s what many articles claim, but as I have said, there is no concrete evidence to support that. But there 1s nothing that suggests that it 1s wrong, 1s there?---Correct. And it is a fairly widely-held view?--~Yes. Speaking of cancer generally, you are, doctor?--- In general. There is nothing that distinguishes melanoma from cancer generally in that respect, 1s there?---No." In re-examination Dr. Sheridan was asked "I think you expressed the view, in answer to Mr. Sheils, that - and please correct me 1f I am wrong in paraphrasing what you said - you could not conceive of trauma having an effect on a single cancer cell which had passed from the primary into one of the lymph nodes. That if trauma were to have some effect it would only be an effect on a lump which had developed and which consisted of some thousands of cells?--~-That is correct. Once you have got to the stage that a cell, having travelled from the site of the primary lesion into the lymph node, has multiplied to the extent that there is a lump consisting of some thousands or tens of thousands of cells, in relation to melanoma as distinct from other forms of cancer, what is the likelihood that irrespective of any further triggering that mechanism, 1t will continue to grow?---I think it is an almost absolute guarantee 1t will continue to grow." The fourth medical witness, Dr. Mitchell, a consultant physician called by the respondent, was adamant that neither physical nor pschological trauma would trigger off or accelerate the growth of cancerous cells in a melanoma. He said in effect that there was no recorded evidence to support either possibility. It cannot have been easy for the learned trial judge to reach a decision in the face of this rather conflicting evidence on a question which is obviously close to the frontiers of present medical knowledge. The matter was further complicated by other factors. The real issues became clearer as the evidence progressed; but at different times they were confused by such doubts as (a) whether the evidence related to malignant tumours generally or melanomas in particular, (b) whether references to ''spreading', 'extending' or 'growing' related to the transfer of cancerous cells through the bloodstream or lymphatic system or to the growth of tumours at a particular site, and (c) whether references to the growth of melanomas meant growth from a single cell or small number of cells or the further growth of an existing tumour already comprising large numbers of cells in the form of a lump. It 1s obviously difficult, in an adversary system where a number of related issues have to be pursued by lawyers acting in accordance with their briefs, to deal adequately with a topic which could usefully be debated at length in a medical symposium. The triai Judge must do the best he can with the resulting, rather fragmentary, material. In this case his Honour found against the plaintife£, Mrs. Fuderer, on the central issue of causation or aggravation of the melanoma. He did so simply on the basis of the medical evidence, which was, in our respectful opinion, the proper approach. We do not think this was a case where the court could "begin its investigation, i1-e. before hearing any medical testimony, from the standpoint of the presumptive inference which [the] sequence of events would naturally inspire in the mind of any common~sense person uninstructed in pathology "- Rich ACJ in Adelaide Stevedoring Co. Ltd. v Forst (1940) 64 CLR 538 @ 563. The existence of the 'aggressive' melanoma, unrelated to the accident, and the time lag of months between accident, traction and first consciousness of the presence of a tumour, prevent any "presumption which flows from the observed sequence of event" Rich ACJ at p.564. We thank this is clearly "an unmixed question of fact, medical and scientific in character, and therefore to be decided upon expert testimony" - Dixon J. in the same case at p-568. In giving his decision on the central issue, the learned trial judge said, "In the words, with minor adaptations of Dixon J. as he then was in his dissenting judgment in Adelaide Stevedoring Co. Ltd. v Forst (1940) 64 CLR 538 at 569, the present state of medical knowledge does not admit of an affirmative answer to the question whether the malignant melanoma was either caused by the fall at work or was aggravated by the fall itself, the treatment for the injuries sustained ari the psychological stress to which the plaintiff was subjected by reason of the injuries and the treatment or any one of those factors. I am unable to conclude, on the balance of probabilities, that the burden of proof has been discharged either as a probable inference or as an accepted hypothesis." The passage from the judgment in Forst's Case to which his Honour refers is not an easy one to construe. Dixon J. said, "I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowleuge does not admit of an affirmative answer and that competent and trustworthy expert cpinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis." It 12s not clear from the context of this passage why Dixon J. chose to express his opinion in negative terms - "... a court can only say that the burden of proof has not been discharged where ...". Certainly there must be an unstated preamble to the passage. His Honour was obviously postulating some persuasive material before the Court which would, at first sight, lead it to conclude that the burden of proof on the plaintiff had been discharged. So far as Dixon J's precise meaning 21s concerned, it might be thought that his Honour was simply stating one test, namely that the present state of knowledge does not permit an affirmative answer, in that expert opinion regards such an answer as unjustified - either on a basis of probability cr of accepted possibility. However the High Court has since said that Dixon J. laid Gown two cumulative requirements, (1) that the present state of knowledge does not admit of an affixmative answer, and (2) that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, "at least as a probable inference" see Tubemakers of Australia Ltd. v Fernandez (1976) 50 ALJR 720 at 724. While not expressly adopting this passage from Dixon J's dissenting judgment, Mason J., with whom Barwick C.J. and Gibbs J. agreed, cited it with apparent approval as one of several helpful statements on the plaintiff's onus of proof in cases such as the present. In order to distinguish between the two requirements rdentified in Tubemakers Case, lit seems necessary to read the first as 1£ the reference were to a clear affirmative answer and the second as relating to a less certain but still probable affirmative answer. Mason J. seems to be putting to one side the question whether an answer that represents an accepted hypothesis" will suffice. It us to be noted that in his dissenting judgment in Tubemakers Case, Stephen J. uses the phrase "an acceptable hypothesis", but it seems likely that Dixon J. meant to refer to an hypothesis that could be shown to have found acceptance in expert circles, not merely an hypothesis which 1s acceptable to the Court. On these assumptions we think it should be accepted that the learned trial judge in the present case intended to convey, in the paragraph quoted, that (a) there could be no clear finding that the melanoma was caused or aggravated by any circumstance for which the respondent had to accept responsibility, (b) the medical evidence, taken as a whole, did not establish a probable inference that the melanoma was so caused or aggravated, and (c) the medical evidence did not even establish that the medical profession was prepared to accept the hypothesis that a melanoma could be so caused or aggravated. In our view the first two of these fandings were inescapable on the evidence and the third was clearly open to his Honour (Cf. St. George Club Ltd. v Hines (1961) 35 ALJR 106 at 107; Ramsay v Watson (1961) 108 CLR 642 @ 644-5). If 1t could be said that his Honour misdirected himself by attempting to apply Dixon J's language to a case where there were no circumstances raising a presumption of a causal connexion between the accident and the relevant medical condition, and that this Court should consider the matter for itself (there being no question of credibility involved), we would simply say that the appellant has failed to satisfy us, in the light of all the medical evidence, that 1t was more probable than not that a causal connexion existed. In fact we think that his Honour meant no more than this and that he did not misdirect himself. A decision against the appellant on this central issue still leaves two grounds of appeal which were argued. The first 1s that the general damages awarded were clearly inadequate, even when all considerations arising from the melanoma and its treatment are put to one side. Although we would not characterize the sum of $25,000 for the plaintiff's shoulder injury and subsequent painful treatment and slow recovery as generous, we are unable to say that 1t is so clearly inadequate as to require interference from an appellate court. The task of separating the two sets of injuries 1s not easy and the consequences of the melanoma on employment possibilities, enjoyment of life and life expectation must be taken into account. The learned trial judge was faced with a difficult assessment problem and we are unable to conclude that he erred. The final ground of appeal related to the learned trial judge's order for costs. There was a payment into Court of $45,200 on the Thursday before the trial, which took place on a Tuesday, with counsel's addresses on the Wednesday morning. When the plaintiff recovered only $35,675, his Honour ordered that she pay the costs occasioned after the date of payment in. It was not known to his Honour when he made this order that the payment in had placed the plaintiff ain a very difficult position. She had already received $36,742 by way of workers' compensation payments (including medical expenses) which, according to the defendant, she was obliged to return on receiving judgment. This would have left her with a figure of only $8458 by way of effective general damages, an amount clearly inadequate to compensate her for pain and suffering and loss of enjoyment of life, even putting aside the melanoma. The true situation about the refund of workers' compensation payments was not put to the learned trial judge when he made his order as to costs. It was not explained adequately to this court; and further material which has been filed since the hearing of the appeal suggests that, due to misunderstandings, his Honour may have been wrongly informed as to the extent of Mrs. Fuderer's loss of earnings properly attributable to her fall. We make no finding on that material, but it seems likely that his Honour will be asked to reopen the question of special damages because of the allegedly inaccurate information given to him at the trial. In this confused situation, which we cannot clarify, there seems to be a real possibility that his Honour's order as to costs may, for lack of proper information, have resulted in an injustice to the appellant. In these circumstances we think the best course for us to follow is to set aside his Honour's order as to costs, express some views on the issue concerning payment into court which was argued before us, and remit the question of costs to his Honour for further consideration in the light of those observations and of any new facts which may be placed before him. The Rules of the Supreme Court alicw the plaintiff a period of 14 days to accept a payment into court. They also require the trial judge, in fixing costs, to take unto account the fact that money has been paid into court and the amount of such payment, and "all other relevant matters" (0.26 r.6). The only point we would wish to make about these Rules 1s that, in the case of payments into court close to the date of trial, a plaintiff should normally be allowed a reasonable time to consider the impiications of the payment and to take advice. What is a reasonable time will depend upon the circumstances of the particular case, but several working days would usually seem sufficient. Since the plaintiff would be obliged to continue to prepare for trial until a decision about the payment in had been reached, it would normally be appropriate, in cases where the payment in exceeds the amount for which judgment is given, to allow the plaintiff to have his costs up to some date after the payment in and only require him to pay the defendant's costs incurred after that date. Cf£. Tanner v Marauis Jackson (1975) 6 ACTR 9. In all the circumstances we believe that the question of costs should be remitted to the learned trial judge for further consideration. Otherwise the appeal should be dismissed, with costs. I certify that this and the 16 preceding pages are a true and accurate copy of the Reasons for Judgment herein of the Court sociate to The Hon. Mf. Justice A.E. Woodward Dated: 5 December 1983