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. per Cripps JA: It was not demonstrated that the trial judge failed to use of palpably 35 misused the advantage of seeing or hearing witnesses. His findings upon the demeanour and credibility of Dr Finch and the respondent were neither glaringly improbable nor inconsistent with other proved facts. The claim for "loss of chance" was not explored at the trial and cannot be raised on appeal. Abalos v Australian Postal Commission (1990) 171 CLR 167 40 Jones v Hyde (1969) 63 ALJR 349 McGhee v National Coal Board [1973] | WLR 1 Farrell v Snell (1990) 72 DLR (4th) 289 The Public Trustee as Administrator of the Estate of the Late Peter Saroukas v Sutherland Shire Council (1992) Aust Torts Rpts 81-149 45 Coulton v Holcombe (1986) 162 CLR 1 Water Board v Moustakas (1988) 62 ALJR 209 Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR Mahoney JA In June 1990 the plaintiff was found to have a malignant growth 50 in her left breast. Notwithstanding a mastectomy, she continues to suffer from a general and serious cancerous condition. In August 1992 she sued her general 2 UNREPORTED JUDGMENTS practitioner, the defendant, for negligent treatment of her. In January 1993, her case was tried and dismissed. She has appealed to this Court against the trial judge's judgment. Thave read the judgment of Cripps JA. I agree with his Honour's judgment and his explanation of why the plaintiff's appeal to this Court must fail. But this matter is of particular importance to the plaintiff, legally and perhaps emotionally. I am conscious of her condition and of what has been put to the court by counsel in that regard. I shall therefore add to what Cripps JA has said some observations of my own. Stated conceptually and, perhaps, in oversimplified terms, the contest between the parties is whether the condition which the plaintiff had in April 1989 is the condition which produced the malignant growth discovered in June 1990. At the trial there were other issues but that is the issue on which the plaintiff's claim now turns. It was essential to the plaintiff's case, as it was presented, that she prove that the 1990 condition was a development of the 1989 condition. This is because she could succeed against the defendant only if she proved he was negligent in his treatment of her and the only negligence proved against him was negligence in respect of the 1989 condition: he was not negligent in respect of the 1990 condition. The plaintiff's case was that, in April 1989, she had cancerous lumps in her left breast and that those lumps continued in that breast up to June 1990. If that was so, then the inference was - and it would be a strong inference - that the condition which the defendant had negligently treated in April May 1989 was the condition which existed in June 1990 and continues to exist. Her case was that if it had been properly treated in April May 1989, it would not have developed as it did. The defendant's case was different. It was that the 1989 lumps were not cancerous but cysts; that the cysts disappeared in the ordinary course; that the 1990 cancerous condition was a new condition which developed after the 1989 condition had subsided; and that it had no relevant connection with the 1989 condition. As the trial was conducted, the trial judge was required to choose between these two cases. The aetiology of a cancerous condition is, as the witnesses recognised, often complicated and sometimes not fully understood. However, the way the evidence emerged established that, if the lumps continued to exist between April 1989 and June 1990, the 1989 condition was probably cancerous; if between April May 1989 and early 1990, the lumps did not exist in the breast, then the 1989 condition was not cancerous. It was this issue which was at the centre of the dispute which the judge had to decide. The judge held that the lumps did not exist during the second half of 1989. He based this conclusion upon two things: an examination made in June 1989 by Dr Finch and an examination in December 1989 by the defendant. On each of these examinations, there were no lumps. If this evidence was accepted, the plaintiff's case failed. Therefore, stating the matter broadly, if the plaintiff was to succeed in her appeal to this Court, she had to show that the judge was wrong in accepting this evidence and in concluding that, during that time, the lumps did not exist. The plaintiff had said that the lumps had continued to exist between April 1989 and June 1990. The judge did not accept this part of the plaintiffs evidence. He gave reasons why he did not accept it. These have been referred to by Cripps JA. It cannot be successfully contended before this Court, and I do not think it was URJ STACEY v CHIDDY (Mahoney JA) 3 contended, that the judge was guilty of reversible error in what he did in this regard. At least, there was nothing in the evidence of the plaintiff herself which required that he accept what in this regard she said. I have carefully considered the evidence of Dr Finch and of the defendant to see whether the judge was wrong in accepting what they said as to their examinations and whether I can and should come to a different conclusion. I do not think that I should. I am conscious of the fact that the evidence of Dr Finch and of the defendant depends, not upon actual recollection by them of what was done, but upon inference from records made by them at the time of their examinations. But what they have said as to their system of working and of keeping records was accepted, and the acceptance of that involved no reversible error: I myself would accept that what they said was right. On that basis, the inference that the plaintiff's breast was properly examined at the time is, I think, a strong one. I have considered whether the medical evidence is such that, notwithstanding what was said by Dr Finch and the defendant, the existence of the admitted cancerous condition in June 1990 should lead to the inference that a cancerous condition existed in April May 1989 and existed in a form which would have been detected if the defendant had done what, on the judge's findings, he should then have done. There is the tendency, logical as well as emotional, to infer that the 1990 lumps were those which existed in 1989. But the evidence establishes the possibility that a cancer such as was detected in June 1990 could have commenced after the examination by the defendant on 4 December 1989. If that be so, then the acceptance of the results of the examinations by Dr Finch and the defendant in June and December 1989 was crucial because the evidence established, with the appropriate degree of probability, that if there were no lumps between June and December 1989, the 1990 cancer commenced after the 1989 examinations. Cripps JA has referred to the significance in this regard of the application for further hearing of this appeal. The court had heard detailed oral argument from counsel and had in addition long and detailed written submissions. These were considered, during the course of oral argument and otherwise. However, after the argument had concluded and the court had reserved its decision, Mr Gross QC for the plaintiff placed before the court additional written material and invited the court to hear further oral argument upon the matters referred to in it. This material related, at least in the main, to the issues to which I have referred. The court invited counsel to place before it in written form such additional arguments as they desired to advance. This was done. Having considered these, the court concluded that the appeal should not be further extended by additional oral argument. I have, for the purposes of the appeal, assumed that the transcript alterations suggested for the plaintiff should be made: I have, for the purposes of determining the appeal, approached the matter on that basis. However, if Dr Sheldon had said what the suggested corrections would record him as having said, that would not lead me to the conclusion that has been suggested for the plaintiff. I do not accept that, if the transcript be assumed to be as the plaintiff now contends, that could or would have affected the judge in his determination of the acceptability of the evidence of Dr Sheldon or of other witnesses. In my opinion, the plaintiff has not shown that such departure from the proper standard of care as occurred in 1989 affected the cancer which subsequently occurred. 4 UNREPORTED JUDGMENTS Mr Gross QC, for the plaintiff, sought on appeal to raise an additional case, one which was not raised at the trial. At the end of the appeal, the basis of it was not clear. As I understand it, it was to the effect that the defendant's negligence lay in not, in April May 1989, referring the plaintiff for examination by another specialist or surgeon practitioner; that if she had been referred at that time, there was a possibility that such examination would have detected a cancerous or precancerous condition which the defendant as a general practitioner would not have discovered, himself or through xray or ultra sound procedures; and that, because of his negligence in failing to do this, the plaintiff lost the chance that such a condition existed and would have been discovered at that time. There was no evidence which the judge accepted that, had the defendant referred the plaintiff for further examination of this kind, there was in April May 1989 any condition which would have been discovered. There are no doubt cases in which the damage suffered by a plaintiff because of the defendant's negligence consists essentially in the loss of a chance. I am not satisfied that the present is such a case. But in such cases, it is I think necessary to show that there was such a chance and that it was lost. Such a case was not explored at the trial, no doubt because it was not raised. I do not think that it should be allowed to be raised now. If it had been raised, the defendant may well have adduced evidence to deal with it. He might have shown that, for example, the cancer which existed in June 1990 would have shown no signs in April May 1989. The plaintiff cannot succeed on this new basis. The appeal must be dismissed with costs. Priestley JA I have had the benefit of reading the reasons to be delivered by Cripps JA. They demonstrate that for the appellant to succeed in the appeal she would have to show that Levine J was wrong in accepting the evidence of Dr Finch about his examination of the appellant on 16 June 1989 and the evidence of the respondent about his examination of the appellant on 4 December 1989. The evidence of the doctors in regard to these examinations in one sense rested on a slender basis. Neither had any memory of the examination he did, and each reconstructed what would have happened by reference to a rather cryptic contemporary note and his own usual practice. However, once the judge accepted, as it was within his function to do, that the contemporary notes were genuine, and, as again it was within his function to do, that the doctors' accounts of their usual practice were truthful, then it was open to him to conclude, on the probabilities, that no lumps were palpable in the appellant's breast at the times of the two examinations. The function I speak of is one which is peculiarly that of a trial judge, namely, the weighing of contested oral evidence, and deciding what to accept or reject. The conclusion Levine J came to is one with which, on the evidence in this case, this court should not interfere: Abalos v Australian Postal Commission (1990) 171 CLR 167. It is also one which negated an essential step in the case presented by the appellant at the trial. The result is, in my opinion, that the appeal fails, and should be dismissed with costs. Cripps JA This is an appeal against a judgment of Levine J for the respondent,Dr Chiddy, in proceedings brought against him by the appellant, Mrs Stacey. In June 1990, the appellant was diagnosed to be suffering from cancer of the breast. The respondent was her family doctor. In April 1989 she consulted him about two lumps in her left breast. She was then 31. The appellant alleged the respondent was guilty of professional incompetence in failing to detect the URJ STACEY v CHIDDY (Cripps JA) 5 presence of the cancer and/or in failing to refer the appellant to a specialist for an investigation at a time when it was appropriate to do so. Although the appellant's claim was framed in contract and tort, the hearing before Levine J proceeded on the basis that it was a claim for damages for negligence. Levine J found that although the respondent's advice and treatment in April 1989 was less than satisfactory, he was not satisfied, on the balance of probability, that the appellant suffered any damage as a result of the breach of duty. The appellant has submitted that Levine J erred with respect to his finding of causation. It has also been submitted by Mr Gross QC on her behalf that if the Court is not persuaded that Levine J erred in concluding, as he did, that he was not satisfied on the balance of probabilities that the appellant's damage resulted from the respondent's negligence, nonetheless the appellant was entitled to a verdict for what was described by Mr Gross as "damages for loss of possibility". I shall return to this matter later. On 13 June 1990 the appellant, then aged 32, consulted the respondent complaining of a lump in her left breast. She was referred to a specialist who aspirated the lump. Later a biopsy was performed and, after testing, the appellant was diagnosed as having cancer of the breast. She had a mastectomy on 21 June 1990 and thereafter underwent chemotherapy. The respondent continued to be her family physician until 1992. On 26 August 1992 she commenced proceedings against the respondent alleging professional negligence. By reason of the cancer the appellant's life expectancy is a few months at the most. The hearing before Levine J was expedited and heard in January 1993. The appeal was also expedited and was heard on 2 March 1993. Thereafter, the appellant applied for and was granted leave to make further submissions. The appellant did not allege negligence arising out of the diagnosis and treatment in and after June 1990. Her claim was based upon the failure by the respondent to advise and treat her in accordance with acceptable medical standards in April 1989 when she was his patient and consulted him for treatment for two lumps in her left breast. The appellant first consulted the respondent about the lumps in late March 1989. She said she had only recently discovered them. She was examined by the respondent who could feel them by palpation. He told her to return in a couple of weeks because he thought they were cysts. It was not disputed that the most likely diagnosis for a 32 year old married woman at that time was that she had cysts and not cancer although, of course, the possibility of cancer could not be ignored. She returned on 13 April 1989. The lumps were still there. The respondent arranged for her to have a mammogram and ultrasound examination. The mammogram report was dated 14 April 1989 and read: "There is a large amount of dense and dysplastic appearing breast tissue in both breasts. There is no evidence of any discrete mass lesions. There are multiple small flecks of microcalcification, particularly throughout the left breast, which on magnification view demonstrates more clearly. This does not appear to be grouped at any point and presumably represents significant dysplastic change throughout this rather dense breast tissue. There is no evidence of any localised or discrete masses, although low density lesions could be hidden within the dense breast tissue. The appearances are those of fairly significant dysplastic changes. No definite evidence of malignancy. Unfortunately the ultrasound machine was inoperative. However because of the fairly significant dysplastic changes throughout the breast tissue I would recommend the patient return for an ultrasound examination of the breast. 6 UNREPORTED JUDGMENTS (Signed) Dr Peter MacIntosh" On 21 April 1989 an ultrasound examination was performed. The report read: "High frequency real time ultrasound of both breasts was performed. There was a slight increase in the amount of dense echogenic material in both breasts which is in keeping with the dysplastic changes seen on the bilateral mammograms. There is no evidence of any localised lesions, either of a densely echagenic nature or of a cystic nature. The appearances are in keeping with the dysplastic changes seen on the mammograms, however annual examination is recommended. (Signed) Peter MacIntosh" Neither the mammograms nor ultrasound established the presence of malignancy. The respondent knew, however, that mammograms often recorded false negatives and that the ultrasound result did not exclude malignancy. On 21 April 1989 the appellant returned for a further consultation as advised by the respondent. The appellant's complaint about the respondent centred on the treatment and advice he gave her on 21 April 1989. The appellant alleged that the respondent's acts and omissions departed from acceptable medical standards. First, the respondent did not examine the appellant's left breast on that occasion. As the judge found, the lumps were still there. Furthermore, he told her that, based on the mammogram and ultrasound, the lumps would go away and she should not worry. He told her to come back in three months for an examination and thereafter at six monthly intervals. The respondent's case was that his conduct on 21 April 1989 did not fall short of acceptable professional conduct. He said he was confident that his provisional diagnosis of cysts was correct and that the mammogram and ultrasound did not cause him to change his provisional diagnosis. He said that the appellant's age and clinical history (she breast fed her children) supported his opinion. I will not linger over this aspect of the case because the learned trial judge found against the respondent on this issue and there has been no appeal from that finding. It is, however, significant that notwithstanding the finding concerning the respondent's professional conduct, the judge made no findings adverse to his credit. It is important at the outset to make this clear because, although on appeal the case was pitched more moderately, the case before Levine J was conducted upon the basis that the respondent was untruthful as well as incompetent and that his evidence could not be relied on. Levine J did not disbelieve the respondent. He found that the respondent's advice and treatment fell below proper professional standards. He found that although it was not impermissible for the respondent to have had regard to the appellant's anxiety when considering what advice she should be given in April 1989 in the context that it was highly likely his provisional diagnosis of cysts was correct, these considerations should have been displaced by the magnitude of the risk to which the appellant was exposed if the provisional diagnosis was not correct. As Dr Stanton, whose evidence was accepted by Levine J, put the matter: "Any breast lump requires a diagnosis. If a lump is still palpable after menstruation then a mammogram should be performed. Often an ultrasound will be necessary as well if doubt remains as to whether the lump is cystic or not. If the results of these investigations indicate possible malignancy or fail to diagnose the nature or case of the lump, then the patient should have been referred for surgical opinion and management." URJ STACEY v CHIDDY (Cripps JA) 7 Later he said: "T believe that if an undiagnosed breast lump remained palpable then the correct course of action would have been to review the lump over the following month. If the lump remained palpable the patient should have been referred to a surgeon for a definite diagnosis and treatment recognising that breast cancer left untreated carries increased mortality." The appellant's case at trial was that the lumps which she presented in March 1989 never went away and that, to her mind, the lump which was removed in June 1990 was a larger version of the lumps examined by the respondent in March 1989 and April 1989. She called two medical experts, both of whom were highly qualified, Dr Tattersall and Dr Sheldon. Dr Sheldon was of the opinion that the malignant lump removed in June 1990 could have been malignant and present on examination by palpation in March 1989. He acknowledged that by reason of the appellant's age, her ingestion of oestrogen, that in June 1990 she was in the early stage of pregnancy and the particularly aggressive nature of the tumour as disclosed on examination after removal it was possible that in April 1989 the cancer, if present, may not have been detectable. However, he concluded that, notwithstanding the four factors referred to above, other things being equal, it was more probable than not that the tumour would have been palpable in March 1989. The learned judge found: "He said it was possible that the end of March 1989 and the beginning of April 1989, taking into account the factors referred to above, there was no clinically detectable tumour in this breast. As to the probabilities he did reaffirm his position however taking all the factors very carefully into account and taking into account the advanced state of the tumour he concluded that it was more likely than not that the tumour would have been palpable in March 1989. He accepted that the assumptions were very much a matter of judgment looking back and taking into account his experience. He agreed that there was a significant probability that it was not palpable at that time." The factors referred to by his Honour were those factors referred to above. Mr Gross QC has submitted that the transcript does not accurately record the question put to Dr Sheldon that, as a result, Levine J misconceived the true effect of Dr Sheldon's evidence with the result that Dr Sheldon's credibility and reliability was damaged. Dr Sheldon was cross examined by Mr Garling as to whether the four factors mentioned above affected his opinion concerning the probable existence of a malignancy in March or April 1989. "Question: You would expect if you added those four elements together that the period of time between clinical detection of the cancerous tumour and its growth to the size detected on the pathology test may well be shorter than twelve months wouldn't you? Answer: Yes. Question: And if you accept those four factors, doctor, you would agree with me, would you not, that it is quite possible that fifteen months - I withdraw that - that at the end of March 1989 and the beginning of April 1989 there was no clinical detectable tumour in the breast, wouldn't you? Answer: I think that is possible. 8 UNREPORTED JUDGMENTS Question: And indeed, having regard to your evidence about the period of twelve months and the factors which affect it you would agree with me that it is more probable than not, based upon those assumptions alone that I have given you, that the cancerous tumour was not clinically detectable in March and April 1989? Answer: I considered all those factors very carefully in preparing my report and, again, taking into consideration the advanced state of tumour as well as the factors you have just discussed I concluded that it was more likely than not that the tumour would have been palpable in March. Question: But you accept that the assumption is very much a matter of your judgment, looking back and doing the best you can based upon your experience. I do not mean any criticism. I am saying it is a matter of judgment that it was more likely than not to be palpable in March 1989? Answer: That's right. Question: There is a significant probability that it was not palpable at that time, isn't there? Answer: Yes." After oral argument had concluded, Mr Gross QC was granted leave to make further additional submissions. He sought leave to adduce evidence to establish that the word "probability" where appearing in the last question should read "prospect". He submitted that the trial judge misconceived the true effect of Dr Sheldon's evidence and that "the credibility and reliability of Dr Sheldon generally as a witness must have been severely damaged in his Honour's eyes" with the consequence that the plaintiff's "prospects of success at trial were significantly worsened". The documents annexed to the written submissions did not annexe the letter from the Transcription Service which, it is said, confirmed that a mistake had been made. Nonetheless, I am prepared to assume that the word "probability" should read "prospect". I record that the respondent opposed the appellant's application to lead fresh evidence. I make the assumption in favour of the appellant because I do not think, for reasons which I shall give, it is of any significance whether the word was "probability" or "prospect" and also because the Court has been pressed to expedite the appeal. In my opinion, the fresh submission is a red herring. His Honour did not disbelieve Dr Sheldon. On the contrary, he accepted his evidence. His Honour, to my understanding, perfectly understood that, on the assumptions Dr Sheldon was asked to accept, he maintained the view that, although it was possible that the tumour was not present in March, it was probable that it was. Had the appellant's evidence been accepted concerning the continued presence of the lump or lumps throughout 1989, Dr Sheldon's opinion was that, more likely than not, the malignancy was present and detectable in March and April 1989. As will be seen, the difficulty facing the appellant was that she was examined twice in 1989 and, as his Honour found, no lumps were detectable. Dr Sheldon was asked the following questions. "Question: If it be the fact that the patient was examined on 16 June 19839, that is to say about 2 or 2 and a half months after the initial reporting, and upon such an examination, which I ask you to also assume was carried out carefully and thoroughly by a competent practitioner, there was no lump palpable or clinically detectable you would accept that in those circumstances such lumps as were palpated in March and April of 1989 were not cancerous tumours, wouldn't you? Answer: Yes I would. URJ STACEY v CHIDDY (Cripps JA) 9 Q: And you would accept that if such examination took place and was accurately carried out and carefully carried out by a competent practitioner that the lumps which were detected in March and April were of a benign type? A: No. Q: And not related to the cancerous tumour ultimately detected on pathology? A: Yes. If there was a malignancy there in March on the first examination that was clinically identifiable, then it could only have become more so as time went on." Professor Tattersall gave evidence directed primarily to the effect on the plaintiff's life expectancy of the failure to diagnose an assumed malignancy in March or April 1989. He was less confident than Dr Sheldon in drawing any conclusions as to the state of the appellant's breast in March 1989 based upon what was discovered on pathological examination after the tumour was removed in June 1990. However, he was of the opinion on the history given by the appellant that more probably than not her cancerous condition was in existence and discernible in March or April 1989 (that at least is what I am prepared to infer in the appellant's favour although a close reading of Professor Tattersall's evidence leads me to doubt the inference is as powerful as the appellant contends). The opinions of Dr Sheldon and Professor Tattersall were dependent upon an acceptance by each of the history given by the appellant of a continuous lump or lumps capable of detection by palpation from March 1989 until June 1990. Further and absent what was called by Dr Sheldon an "exquisitely unlikely" case, the lump or lumps, if malignant, would not have reduced or have become undetectable between April 1989 and June 1990. I have already referred to Dr Sheldon's evidence about the matter. The evidence before his Honour was that if the lumps were malignant in March or April 1989, they would have increased in size but not necessarily at a predictable or constant rate. The learned judge did not accept the evidence of the appellant concerning the continued presence of the lump or lumps. He referred to inconsistencies in her evidence and to her failure to mention lumps to doctors during the remainder of 1989 and early 1990. His Honour made it quite clear that in reaching his conclusion he disregarded the appellant's demeanour when giving evidence. At the time she gave evidence she knew she was dying. It was conceded by the respondent that demeanour should be ignored in fairness to the appellant. The learned judge also made it clear he did not find any conscious or deliberate untruthfulness by the appellant and he noted that so much was conceded by the respondent. However, he found she was embittered and that she blamed the respondent for her terminal condition. She said the lump never went away but got bigger. Her evidence was rejected. Specifically, his Honour found that there was no detectable lump in her left breast in June 1989 and December 1989. In June 1989 she was examined by Dr Finch, the respondent's partner. In December 1989 she was examined by the respondent. Neither doctor detected lumps in the appellant's breast. Furthermore, he rejected the appellant's husband's evidence concerning measurements he said he had made of the lump and about what he said had occurred in June 1989 when she was examined by Dr Finch. His Honour found that, like the appellant, the respondent's recollection was influenced by factors that made the appellant's evidence unreliable. 10 UNREPORTED JUDGMENTS As I have said, the appellant was examined by the respondent's partner, Dr Finch, in June 1989. It was common ground that the visit by Dr Finch to her home and her visit next day to his surgery were not for the purpose of a three monthly checkup as advised by the respondent. She had a pain in her chest on 15 June 1989 and Dr Finch was called to examine her at home. He also examined her in his surgery on 16 June 1989. He made the following notes on her card: "Substernal pain last night. Lasted ten minutes. On examination: Abdo (tick) Heart (tick) Breasts BP 120/80 PD Reflux oesophagitis. Now completely recovered so no further therapy required." On 4 December 1989 she consulted the respondent. Again, the purpose of the consultation was not a six monthly check up advised by the respondent. The appellant was proposing to go overseas and she wanted an anti tetanus injection. On that occasion the respondent examined her and made notes. The notes on her card were: "1.12.89 Missed appointment. 4.12.89 Discuss overseas trip. ADT (given) Breasts (tick) (tick)" Neither Dr Finch nor the respondent claimed any independent recollection of the examinations. However, each gave evidence as to what was his usual practice. Each said it was usual and routine to examine women's breasts. Each said that they would have palpated the appellant's breasts and if any lumps were detectable they would have been noted. It is not without significance that the appellant's card upon which the above notes were made recorded the results of the earlier examination including a small drawing indicating the presence of the lumps detected in March 1989. The evidence of Dr Finch and the respondent concerning these examinations was strenuously attacked at the trial. I did not understand the attack on Dr Finch to have been that he was telling lies. Rather, it was that he might have been mistaken and that, in any event, he had no independent recollection of the examination. It was suggested, for example, that the word "breasts" might have been "bruits". However, the only concession Dr Finch would make to any suggestion that he made a mistake about whether he examined the appellant's breasts was that "anything is possible". The learned judge found: "T accept Dr Finch to be general practitioner of immense experience (40 years - he had been President of the Royal Australian College of General Practitioners). He was a careful witness. He was considered by the defendant, and this was not disputed by the plaintiff, to be a general practitioner who was meticulous and took great care in the conduct of his calling. He has no independent recollection of the event recorded. I add that that fact alone, whilst it must be taken, into account, is not necessarily noteworthy in relation to a medical practitioner in a busy general practice. Dr Finch did not in any way seek to place his evidence otherwise than as prompted by the notes he made. Indeed the doctor was quite candid about being unable to recollect whether there was a home visit followed by a consultation the following morning and I am not prepared to attach any less weight to his testimony for that reason. I accept Dr Finch as a witness of truth, that he examined the breasts, detected no abnormality, and that had there been any he would have recorded it and drawn it to the defendant's notice. URJ STACEY v CHIDDY (Cripps JA) 11 The absence of a tick after the word "breasts" he says is an error, an inconsequential one and I have no difficulty at all in accepting that from this witness. As to the suggestion that in the notes the words "breasts" could well be, and on the probabilities is, the word "bruits", I simply reject. The notes are clear and legible and I read the word as breasts. Exhibit L, the court room writing of the two words adds nothing. In short I am satisfied that Dr Finch examined the patients in the course of the routine examination in the light of her complaints. I am satisfied that he examined them in the supine position only and I am satisfied that, from what I observed of the witness and the tenor of his testimony, that no abnormality was detected in what I consider to have been a thorough competent examination in the circumstances and I am perfectly satisfied that this doctor, had he found anything would have noted it." The attack on the respondent was much more serious. It was suggested that he was telling lies and that he had, in effect, forged the December 1989 entry on the appellant's card. Necessarily, of course, the evidence of the respondent with respect to the examination in December 1989 was more damaging to the appellant than Dr Finch's examination because it took place six months later and at a time when, if the appellant's version was correct, the lump would have been more detectable by palpation than it was in June 1989. As I have said, like Dr Finch, the respondent did not claim to remember independently what he had done in December 1989. He relied on his usual practice. However, he denied he was telling lies and he denied he had forged entries on the appellant's medical card. The learned judge said (38): "Did he or did he not examine the plaintiff's breasts on 14 December 1989? of course Dr Chiddy could be expected to interpret his notes in the most favourable light to assist him in his case. I have already referred to the rationale for such a view. His position in relation to the examination was unshaken during cross examination and his position was simply that his note reflects that he conducted an examination which disclosed no abnormality. He has no independent recollection, and of course his records stand to be interpreted by him, and it is whether or not his interpretation should be accepted, and in that regard whether or not there are any matters affecting his credit. On my observation Dr Chiddy (again given his position as a defendant in this kind of action) was overall unremarkable that I have to simply come to that conclusion that Judges always have to come to is whether or not he is to be accepted on the issue. He conceded that it is possible that the entry was a "mistake" in the context of the not uncommon nor unreasonable proposition that 'anything is possible'. In the course of submissions it was contended for the plaintiff that one basis for seriously doubting the integrity of the entry in relation to the breast examination is a comparison with an entry made on 31 May 1991 which disclosed 'O/E Breasts (tick) (tick) Chest (tick)' the submission is the latter entry is just an impossibility, as it were, because by that time the mastectomy had been carried out (21 June 1990). I reject this submission as a grotesquerie in itself and attach no weight to it all the more so because such an extraordinary proposition was not even put to the defendant in cross examination. There also was a question raised as to the '4' which the defendant was able to confront. Nothing turns on this. (As to the writing of dates; simply note in the original documents of Exhibit D the form of the entry for 28 March 1989 and the 12 UNREPORTED JUDGMENTS preceding entry), The ultimate submission for the plaintiff in relation to this entry given the plaintiff's assertion that no such examination took place, is that the entry in relation to breasts is a 'forgery' inserted by the defendant after the cancer had been diagnosed in June 1990. I was provided a magnifying glass with which to consider handwriting differences that would lead to this conclusion (including the 'bifurcation' in parts of the written lines). No expert evidence was called on the matter. I am not an expert on such matters. It was clearly denied by the defendant and by the whole tenor of his evidence. Insofar as I can form a view by magnified examination certainly do not come to the conclusion that there is anything sinister in any variation, if there be any at all to ordinary observation, in the entry. It is my concluded opinion that, in the writing itself, applying ordinary observation, there is nothing at all amiss. The plaintiff's anxiety to ensure acceptance of the proposition that no breast examination took place over the 15 month period is understandable in the context of this litigation. I am not prepared to form the view that the defendant's anxiety to defend his reputation is such as for him to have engaged in the alleged conduct which at best is dishonest, and at worst criminal. I reject this submission and accept the defendant's position that the entry is genuine and that, even though he has no independent recollection of the event, it is probative of the fact of examination and its outcome. I find that there was an examination on the breasts on 14 December 1989 which disclosed no abnormality." Unless these findings can be set aside on appeal, the appellant cannot succeed and I do not think they can. It has not been demonstrated that Levine J failed to use or palpably misused the advantage of seeing and hearing witnesses (see Abalos v Australian Postal Commission (1990) 171 CLR 167, Jones v Hyde (1969) 63 ALJR 349). The findings based upon the demeanour and credibility of Dr Finch and the respondent were neither "glaringly improbable" nor inconsistent with other proved facts. The circumstance that, in each case, the evidence given was inconsistent with that of the appellant and her husband highlights the problem facing the appellant. It was for the trial judge to determine what evidence he accepted and what evidence he rejected. Although the learned trial judge did not have regard to the demeanour of the appellant when giving evidence, he did give reasons why he did not accept her evidence. It is clear that his Honour found that if the lumps were not palpable and detectable in June 1989 and December 1989, then the malignant tumour detected in June 1990 was not, on the probabilities, relevantly related to the lumps detected in March 1989. He accepted the evidence that it had not been shown on the balance of probabilities that the lumps found and detected in March 1989 were malignant. This conclusion, in my opinion, disposes of the appeal. However, the appellant submits in this Court that Levine J erred in failing to award her damages for what was described in the submission as "the lost chance of cure or near normal life expectancy" by reason of the respondent's failure to refer her to a surgeon for specialist examination in April 1989. It was submitted, if I understand the argument correctly, that the appellant was entitled to compensation for the loss of a chance of diagnosis of cancer notwithstanding that she failed to prove more probably than not that upon proper diagnosis the cancer would have been discovered. We were invited to consider a number of American, Canadian and English authorities touching, it was said, upon the topic (see McGhee v National Coal Board [1973] 1 WLR 1, Farrell v Snell (1990) 72 DLR (4th) 289). It would seem to me that the law in Australia is that the plaintiff is required to prove on the balance of probabilities that her damages are the result URJ STACEY v CHIDDY (Cripps JA) 13 of a defendant's negligence (see The Public Trustee as Administrator of the Estate of the Late Peter Saroukas v Sutherland Shire Council (1992) Australian Torts Reports 81-149)). This is not a case where it could be said that the breach of duty itself materially caused or contributed to the appellant's damage. However, and of greater significance, the case now sought to be advanced in the Court of Appeal was not the appellant's case at the trial. At trial her case was that the lumps were malignant in March and April 1989 and that had a biopsy been undertaken at that time it would have led to early diagnosis and treatment. There was no case put to the effect that a biopsy on cysts, for example, could have led to detection of cancer elsewhere in the breast and unrelated to the lumps as appeared to be suggested in argument before this Court. Nor was it alleged that the appellant was the "exquisitely unlikely case" referred to by Dr Sheldon viz that the lumps were malignant in March but not detectable in June or December 1989. The case at trial was that the lump or lumps was or were present and getting bigger between March April 1989 and June 1990. That being so her case was that the detected tumour in June 1990 would, more probably than not, have been detected in April 1989. The loss of chance by not detecting a malignant tumour elsewhere in the breast had a biopsy been performed in March 1989 was not explored at the trial and I do not think it can be raised on appeal (see Coulton v Holcombe (1986) 162 CLR 1, Water Board v Moustakas (1988) 62 ALJR 209 and Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279). Doubtless the trial proceeded as it did because the appellant accepted that unless she established on the balance of probabilities that a malignant tumour was present and detectable in April 1989 she could not succeed. The learned trial judge rejected her claim and, in my opinion, no error has been identified. I would dismiss the appeal with costs. Appeal dismissed with costs. Counsel for Appellant: B Gross QC with LA Levy Solicitors for Appellant: Yvonne Swift and Burn Counsel for Respondent: DJ Higgs with A Gelbart Solicitors for Respondent: Tress Cocks and Maddox