IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY ACT No. G.58 of 1983 GENERAL DIVISION BETWEEN: SHERYL GLADYS TAYLOR Appellant and THE CAPITAL TERRITORY HEALTH COMMISSTON Respondent CORAM: Northrop, McGregor and Fitzgerald JJ. DATE: 4 November 1983 WHERE MADE: Canberra ORDER THE COURT ORDERS THAT: ~~ 1. The appeal be allowed. 2. The order appealed against be set aside. 3. Judgment be entered ain favour of the appellant for damages to be assessed. 4, The matter be remitted to the Supreme Court of the Australian Capital Territory for the assessment of damages. 5. The respondent pay the appeljJant''s costs of the appeal and of the Supreme Court proceedings. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ACT No. G.58 of 1983 ) DISTRICT REGISTRY ) GENERAL DIVISION BETWEEN: SHERYL GLADYS TAYLOR Appellant and THE CAPITAL TERRITORY HEALTH COMMISSION Respondent CORAM: Northrop, McGregor and Fitzgerald JJ. DATE: 4 November 1983 WHERE: Canberra NORTHROP J. EX TEMPORE REASONS FOR JUDGMENT I agree with the orders proposed by Mr. Justice McGregor and Mr. Justice Fitzgerald, and agree with the opinions expressed by each of them and have nothing further to add. - cere Sa es I ooTS Ray I certify that this andthe preceding pages ae a trne copy of the Reasons for Judgment heiein of the Honourable Mr. Justice Nerthap Doki C wae Associate i Dated: . Nouemle 1493 PEE Sa A c RET TT ee mn te oa ery ota 2) ermrcrmcmmnzs toner IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G58 of 1983 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: SHERYL GLADYS TAYLOR ~ AND Appellant CAPITAL TERRITORY HEALTH COMMISSION Respondent EX TEMPORE REASONS FOR JUDGMENT Coram: Northrop, McGregor and Fitzgerald JJ. 4 November 1983 McGregor J. I agree with the statement of material facts and decision proposed by my learned brother Fitzgerald. For myself I would wish to add that there is uncontradicted evidence in support of the plaintiff's claim from Dr. Jolly. He is an experienced General Practitioner who has treated patients with Penicillin over the last twenty years. Further, he has been the appellant's medical adviser, if not the only medical adviser, since November 1977. In AT WIRE TTI nee aera merriment ere A VT. Wilmaew sane eerie ve ME re epee Re me aerate tone wenp ere eee ven te particular, he has treated her for asthma during that period and noted an anaphylactic reaction by her in response to a desensitizing injection ordered by another practitioner. He is familiar with the reaction described as anaphylaxis and also with serum sickness. He visited her apparently in hospital in May of 1979 being the period out of which this action arises. He provided a written report and gave oral evidence. He saw her on 24 May 1979, i.e. after discharge but before readmission to the Woden Valley Hospital. She was then suffering from angioneurotic oedema, a condition, according to his evidence which usually occurs in response to an allergy of some kind. He diagnosed her as suffering from penicillin anaphylaxis and arranged her urgent return to the hospital. There does not seem to have been any challenge to this evidence of diagnosis; and to the extent that it was questioned in cross examination he adhered quite firmly and unequivocally to his diagnosis. In the circumstances of a contest between experts, in the way the learned trial judge considered this matter, it seems to me that Dr. Jolly's diagnosis is entitled to great weight; particularly as Professor Shaw had not seen the appellant but rather relied upon a reading of notes from which he drew conclusions, some of which were equivocal. Dr. Jolly's evidence referred to various signs and symptoms which he observed on the appellant on 24 May 1977. These were submitted amongst others to Professor Shaw and all, save one, accepted by him as manifestations of or reactions to the administration of Amoxil. =e ar 7h ~~" peat nee ainda nai Com animetienenaeinaiennetngenenmmeeneeenane Newborns aret wAmaean aad arene Fe t epee cue oeet ree aes TE pee een ny Me ey Premeee oe ee ee ae hte were egiaeer eeore e In the circumstances, I consider that if the evidence of Dr. Jolly had received due recognition his Honour would not have made ultimate finding, I certify that this and the 3 preceding pages are a truc «= ~ of the reasons for judgment herein of the Court Zune A7¢ ms 2g or Associate IN THE FEDERAL COURT OF AUSTRALIA } AUSTRALIAN CAPITAL TERRITORY REGISTRY ) A.C.T. G58 of 1983 GENERAL DIVISION ) BETWEEN : SHERYL GLADYS TAYLOR Appellant THE CAPITAL TERRITORY HEALTH COMMISSTON Respondent CORAM: Northrop, McGregor & Fitzgerald JJ. DATE: 4 November 1983 EXTEMPORE REASONS FOR JUDGMENT Fitzgerald J.: This is an appeal from a judgment of a single judge of the Supreme Court of the Australian Capital Territory. The trial judge, Blackburn C.J., dismissed the plaintiff's claim for damages for negligence and breach of contract. The plaintiff has appealed asking that judgment — be entered in her favour for damages to be assessed and that the action be remitted to the Supreme Court for the assessment of damages. We Ee ne a Le Re cenit nee ere See nary The material facts are substantially set out at length in the judgmcnt appealed from and no more than brief reference to them is necessary. In essence the present dispute related to the approach adopted by the trial judge in resolving a conflict between two expert witnesses. His Honour's task was made unnecessarily difficult because the attention of vital witnesses was not always directed to critical issues. The plaintiff 1s a young married woman whose early childhood had been prone to attacks of asthma. The defendant controls the Woden Valley Hospital. The plaintiff was admitted to the hospital on 16 May 1979 suffering from an attack of asthma and manifesting signs of upper respiratory tract infection and bronchitis. She was placed under the care of Dr Stepanas, a specialist in Endocrinology, who was a member of the medical staff of the Hospital. The plaintiff alleges that Dr Stepanas treated her incompetently and that in consequence she became ill. The trial judge found that the defendant initially breached its duty to the plaintiff but that the treatment accorded the plaintiff by Dr Stepanas on her discharge from hospital (which was the major area of complaint) was competent and that, in any event, the plaintiff''s relevant illness was not caused by the treatment prescribed by Dr Stepanas. The plaintiff is allergic to penicillin and at the time of her admission to the hospital she was wearing a bracelet which revealed that fact. Further, the plaintiff disclosed her allergy to the nursing staff and to two of the doctors junior to Dr Stepanas. The allergy was noted on her medical records in the PIS or er ee ZT EE mene paren arte! ior ere cans nen eee mere re yore + hospital. However, Dr Stepanas did not notice the notation and prescribed Amoxycillin, or "Amoxil" as it has been described, which is a semi-synthetic form of penicillin. It is not in dispute that the administration of Amoxil to the plaintiff at that point was a breach of the defendant's duty of care to her. The primary judge said: "T sympathise with the plaintiff's understandable indignation at having been treated with amoxil from 17 May to 21 May when the indications against such treatment were so ~obvious." However, no judgment was given against the defendant in respect of that treatment. In the period during which the plaintiff was in hospital she showed some relatively minor indications of what might have been an allergic reaction. It is a reasonable interpretation of the trial judge's findings that the Amoxil did not in fact cause the plaintiff any material disability whilst she was hospitalized. Further, his Honour provided an explanation for that. He said: "The plaintiff received various other medications while in hospital, these included hydrocortisone and becotide which were administered for the purpose of relieving the asthma. These two drugs would have the effect of delaying or attenuating the severity of any allergic reaction to amoxil which might occur." eee Loe ee wore ween re iy eee eer cern a ree te ome, ' It is against that background that the conduct of Dr Stepanas which is complained of by the plaintiff must be assessed. Again, it is convenient to quote from the findings of the primary Judge. He said: "Dr Stepanas said that until he spoke to the plaintiff on the day of discharge he had not been aware of the fact that the plaintiff was allergic to penicillin as he had not himself seen the stickers on the hospital notes, nor had the fact been reported to him by the medical registrar or the resident medical éfficer junior to him. He told her that she had been treated with a drug called amoxil, ~and the plaintiff then asked whether amoxil was a penicillin to which the doctor replied 'No, it is nota penicillin but itis a similar drug to penicillin'. The plaintiff then said to him, 'I am allergic to penicillin and therefore am I not allergic to amoxil?' The doctor said that this 'set him aback' because it was new information to him. He realized she was anxious on the point and began to ask her whether she had had any signs of allergy or allergic reaction to the amoxil; in particular he inquired whether she had had any gastro-intestinal upsets, nausea, vomiting, diaorrhoea or skin rash or itching on the trunk or body. According to the doctor she denied ali this, but did say she had noticed some falling out of hair, that she felt that her scalp was prickly. The doctor said that he then examined her, found no rash, and he did not recognize falling hair or prickliness of the scalp as symptoms of penicillin or amoxil allergy. According to him he was satisfied that the patient was not allergic to amoxil. He also examined the nurses' reports and the date of administering of the amoxil, which was 17 May. He said that he had seen her on 19 May and that she had not mentioned any complaints to him then. He said that he was also impressed by the fact that the amoxil had apparently produced an improvement in her bronchitis and was therefore doing the job it was supposed to do as an antibiotic. He explained that it had 'been administered to her as an antibiotic designed to kill the infection which she apparently had on admission, i.e. the bronchitis. It was important in an asthma sufferer who also had bronchitis, to treat the bronchitis. — eon = ee Se m- Perera A ree: s eaian aittetencaeliet take Se er renga mee Nonna ep pn ttre te a Rar to ene See tes reese aay omy emer * Dr Stepanas went on to say that he then asked the plaintiff about the sort of symptoms she had had with the previous penicillin allergy, and the plaintiff described a swelling of the face and throat which had occurred about twenty years before. He said that he was satisfied that that could constitute, but need not necessarily be incontrovertable evidence of penicillin allergy. The doctor then explained why he decided to prescribe amoxil as a continuing medication for the plaintiff after her discharge from hospital. The decision was made after considering the evidence that the plaintiff had an allergy to penicillin (of which, according to him, there was no present evidence) and the past evidence was 'of a distant nature and not very clear'. . Against this he balanced the benefit that the amoxil had apparently conferred on the plaintiff, namely her cough had improved, her fever had disappeared and the lung function tests were improving. He acknowledged the plaintiff's anxiety about taking the amoxil but reassured her that there was no evidence that she was having any reaction to penicillin or amoxil. He considered there was nothing to suggest that the continued use of the amoxil would produce an allergic reaction within four Gays of using amoxil in a high dose." The plaintiff left the hospital and took the Amoxil tablets and other medication, as advised, on the next three days, 22, 23 and 24 May 1979. She became ill. It does not really seem to be in dispute that she suffered a severe allergic reaction, although it was very much in contest whether the allergic reaction was caused by the Amoxil. On the afternoon of 24 May she went to her general practitioner and was taken by him to hospital, where she stayed for one night. She was then again discharged to return home. It does not appear from the findings of the trial Judge whether the Amoxil was discontinued whilst she was in hospital on that occasion but it seems clear that that was the case. It is unnecessary to detail the plaintiff's symptoms further because damages are not presently in issue. The plaintiff and the defendant each called an independent medical expert of very high repute and qualifications, neither of whom had examined the plaintiff at any time. In the trial Judge's words, the plaintiff's expert expressed the clear and firm opinion that in the circumstances of the plaintiff's discharge on 21 May, the continued administration of Amoxil was, on the part of the doctor who prescribed it, Dr Stepanas, a failure to use ordinary skill. I accept that that was an appropriate, if somewhat abbreviated statement of the relevant test: see Whitehouse v. Jordan (1981) 1 A11.E.R. 267, (H.L.). The defendant's expert, when asked whether the continued use of Amoxil was competent medical practice, replied: "I think it is competent although it would not necessarily have been what I would have done. »«. given that she had been exposed to the drug for four days at that time and had not had an acute reaction. It makes the likelihood of an acute reaction almost zero, and as long as some _appropriate warning is given, yes, it is then competent." The primary judge said: "I am faced with the difficult task of determining whether _Dr Stepanas was professionally negligent, in the face of conflicting opinions from two experts of such high repute. The decision to prescribe the amoxil was made by Dr Stepanas after consideration of the Plaintiff's medical condition during the previous five days in hospital, and of the possible benefits and the possible risks. In the light of this, and of the opinion of Professor Shaw that the oN wart nny © decision was a competent one, I am not able to accept Dr Hodge's opinion that it was a failure to act with ordinary skill. I hold that the prescription of amoxil by Dr Stepanas was not a breach of his duty to the plaintiff." I am unable to agree with that view and I have concluded that it was not, on the uncontroverted evidence and the findings, a view which was open to his Honour. I am, of course, conscious of the restricted role which is appropriate to be played by an appellate court in such circumstances (see Warren v. Coombes (1979) 142 C.L.R. 531) and that not only credibility but the quality of witnesses is primarily a matter for the trial judge and not the appellate court: see e.g. Whitehouse v. Jordan, supra, at p.276 per Lord Edmund Davies. Nonetheless where as here the process of reasoning of the expert upon whom the primary judge relied is exposed and can be seen to be flawed. The appeal court can and should give effect to its own conclusion. It is by no means clear to me that the defendant's expert did express the opinion attributed to him that the decision of Dr Stepanas was a competent one. Certainly he gave no evidence that it was the appropriate treatment. At most, he gave it qualified approval. It was competent "as long as some appropriate warning" was given. _ There is no finding that any such warning was given. There is some evidence that Dr Stepanas advised the plaintiff to consult her general practitioner if she was affected by the Amoxil. His Honour found that Dr Stepanas reassured the plaintiff, telling her that there was no evidence that she was having any reaction to penicillin or Amoxil. However, that is by no means an end to the matter. It is of assistance to go back and reiterate certain parts of his Honour's judgment. He said: (a) "It is not disputed that amoxil is contra-indicated by an allergy to penicillin." (b) "The plaintiff received various other medications while in hospital; these included hydrocortisone and becotide... These two drugs would have the effect of delaying or attenuating the severity of any allergic reaction to amoxil which might occur." (c) "Professor Shaw said that for the purposes of this case there are two kinds of reactions to amoxil which might have occurred in the plaintiff. One was the acute or anaphylactic reaction which would be expected to occur within the first few hours and certainly within the first 12 hours after administration of the drug. The other is the delayed reaction, sometimes called serum sickness, Which characteristically occurs somewhere around fourteen days after exposure to a drug and it may occur weeks or months later; ... He agreed that, with the plaintiff's assumed history of penicillin allergy, it was unwise to prescribe amoxil in the first place. The danger which made such a decision unwise was the danger that she would have, as a dramatic event then and there, an anaphylactic reaction, or alternatively that she might have a subsequent delayed reaction which could occur ata later time." Professor Shaw gave evidence, to which we were directed, that the symptoms exhibited by the plaintiff on her readmission to hospital were indicative of an anaphylactic reaction and further that a delayed reaction probably would, but might not, have occurred earlier rather than later ina person who had 20 ECC ee ene mapa r eee ere ee ee ree earlier been adversely affected by penicillin. However, he said that it might not so occur and certainly on a fair reading, his evidence does not deny the real possibility that the reaction which led to her readmission to hospital was occasioned by the Amoxil and that this was a foreseeable significant risk when she was first discharged. In my opinion, it was not possible consistently with what wag said by his Honour, and even taking into account in favour of the defendant the additional evidence given by Professor Shaw, to rely upon any absence of symptoms while the plaintiff was in hospital or that the symptoms were only minor, as an indication that the Amoxil would not have, or had not had, an adverse effect upon her. Further, there was not, so far as I can see, any warrant whatsoever for Dr Stepanas to reject or discount the clear warning that the plaintiff was allergic to penicillin on the basis of a lack of clarity in her description of her experience some twenty years earlier when she was a child. There was, at best for the defendant, considerable doubt as to the plaintiff's allergy and its nature and history, and in part at least as a result of that doubt, uncertainty as to whether, if the Amoxil was dangerous to the plaintiff, its adverse effects would already have been observable. Dr Stepanas himself, in parts of his evidence, acknowledged an awareness that, at the time when he discharged the plaintiff on 21 May, there was an appreciable risk that she would in fact suffer a reaction from the Amoxil, although in general the tenor of his evidence was that he did not expect a reaction. 10. To these considerations must be added that it seems that there were "a whole host of other antibiotics", besides Amoxil which could have been used and would have been equally effective to treat the plaintiff. Apart from the fact that Amoxil had been successfully used to treat the plaintiff's bronchitis, there was no suggestion that there was any basis for preferring it and no suggestion that any of the other antibiotics might not prove equally efficacious, In my opinion, as the evidence stood, neither the defendant's expert nor the primary judge could have arrived ata conclusion other than that, having regard to his own description of the considerations which he took into account, Dr Stepanas failed in the circumstances to exercise due professional skiil when he prescribed Amoxil for the continued treatment of the plaintiff upon her discharge from hospital. His Honour also relied upon the opinion of Professor Shaw for his conclusion that,-in any event, the plaintiff's disability which occasioned her readmission to hospital on 24 May was not caused by the Amoxil. Once again, in my opinion, it is possible to perceive the error in the process of reasoning which led to that conclusion. The plaintiff's expert, Dr Hodge, was of the opinion, as his Honour found, that it was probable that the plaintiff's disability was caused by the Amoxil. His Honour said, however - Mee bene in eremnea (nee peepee wee owe ee teen -3: ll. "" Professor. Shaw, on the other hand, said that the plaintiff's reaction which caused her admission to hospital on 24 May was possibly a result of her prior allergy to penicillin, but just as likely due to allergy to a wide range of other things, e.g. soaps or cosmetics or all the other drugs that she had taken. He said: 'All of these can give rise to the same sorts of reactions and given that the whole episode did not start within the first couple of days, it makes those other possibilities just as likely.'" Professor Shaw was unable to specify what was the cause of the plaintiff's reaction on 24 May if it was not the course of Amoxil; he simply considered that such symptoms that she exhibited could possibly have been produced by a number of the drugs and items with which she was in contact. His Honour said, speaking of Professor Shaw - "When asked whether there was any way of testing those other possibilities, he replied: 'IT think the test was done for you in that she did not get the response when first challenged with the amoxycillin.'" Iam quite unable to follow that process of reasoning. Firstly, and in my opinion sufficiently for present purposes, Professor Shaw's own evidence in other respects clearly establishes that an allergic reaction to Amoxil need not be immediate but can be delayed. Further, whereas the possibility that one or other of the other drugs with which the plaintiff was treated or the items with which she had contact might have produced an allergic reaction, remained in the realm of speculation. It was an established fact that: Pe etd mows ars 12. (a) the plaintiff was allergic to penicillin and thus at risk from treatment with Amoxil; (b) the plaintiff was treated with Amoxil; (c) the plaintiff suffered a reaction; (d) the Amoxil was stopped; (e) the reaction was diminished by a limited but substantial dose of hydrocortisone and did not reoccur. * Both logic and the authorities require the conclusion in such circumstances including the absence of any suggestion that the plaintiff was in fact allergic to any of the other items, that it has been established on a balance of probabilities that the reaction was caused by the Amoxil: cf. Tubemakers of Australia Limited v. Fernandez [1976] 50 A.L.J.R. 720, Luxton v. Vines (1952) 88 C.L.R. 352, 358, Holloway v. McFeeters (1956) 94 C.L.R. 470, 480. In my opinion, therefore, the learned judge erred in both conclusions at which he arrived. The appeal should be allowed and judgment entered in favour of the plaintiff, the damages to be assessed. The matter should be remitted to the Supreme Court for the assessment of damages. The defendant should pay the plaintiff's tax costs here and below. I also agree with the additional observations made by my learned brother McGregor. I certify that this andthe If — preceding pages are a true copy of the reasons for judgment herein of His Honour Mr, Justice Fitzgerald fee Behl 2 Deve FOr Associate Dated (7 Abcen ter, /FP3?