STACEY v CHIDDY [1993] NSWCA 251

STACEY v CHIDDY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

5 MAHONEY, PRIESTLEY and Cripps JJA 2, 3 March 1993, 23 April 1993

[1993] NSWCA 251 NEGLIGENCE — medical negligence — failure to diagnose cancer APPEALS — findings of trial judge — matters raised for the first time on appeal

The appellant was diagnosed to be suffering from breast cancer in June 1990 — she first complained of lumps in April 1989 — a mammogram — ultrasound examination revealed no definite evidence of cancer but such tests do not exclude cancer — most likely diagnosis was cysts respondent contends that the lumps were cysts which healed, the cancer developing after this condition had subsided — trial judge accepted evidence that the lumps did not exist during the second half of 1989, based upon an examination by Dr Finch in June 89 and the respondent in December 20 89 — the appellant claimed the respondent was guilty of professional incompetence in failing to detect the cancer and/or failing to refer the appellant to a specialist at an appropriate time — the issue being whether the condition complained of in 1989 was the condition which produced the cancer discovered in June 1990.

25 Held: per Mahoney JA: The trial judge was not guilty of reversible error in accepting the evidence of Dr Finch and the respondent. The case for loss of chance, that is, proving that the negligence lay in not in April May 1989 referring the appellant to a specialist who could have detected a cancerous or precancerous condition which could not have been discovered by xray or ultra sound procedures was not explored at the trial and should not be allowed to be raised on the appeal.

30 per Priestley JA: The appeal was dependent upon whether the trial judge erred in accepting the evidence of Dr Finch and the respondent. It was within the function of the trial judge to accept this evidence and conclude that on the probabilities no lumps were palpable during examinations between 1989 and June 1990.