MACQUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIEPATHOLOGY SERVICES PTY LTD [1995] NSWCA 540

MACQUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA 14 December 1994, 28 March 1995 [1995] NSWCA 540

DAMAGES — contribution — joint tortfeasors misdiagnosis of cervical cancer — failures by local GP and pathology report — equal contribution ordered — held: Contribution not disturbed.

TORT — joint tortfeasors — contribution — appellate intervention — proper principles of restraint.

CONTRIBUTION — joint tortfeasors — "but for" test — multiple causes — need for commonsense approach to apportionment — restraint in appellate review.

TRADE PRACTICES — claim for indemnity — misleading and deceptive conduct — false pathology report — not causative of loss.

DAMAGES — apportionment — responsibility for damage — requirements of justice and equity — failure to diagnose cervical cancer in patient — general practitioner overlooks significance of repeated complaints of vaginal bleeding — fails promptly to refer patient to specialist gynaecologist, as good practice required — relies on favourable report of pap smear which is subsequently found to have been negligently misread — reassures patient on basis of pap smear report — expert evidence accepted that pathology reports useful only as screening device and not as conclusive diagnostic tool — primary judge finds general practitioner and pathology company negligent — apportions responsibility equally between them — upon appeal by each defendant against the judge's apportionment — held: (dismissing the cross-appeals): (1) The review of apportionment under the Law Reform (Miscellaneous Provisions) Act 1946, s5 is conducted by an appellate court with considerable restraint having regard to the broad discretion conferred upon the primary judge and the possibility of differing judicial minds reaching different conclusions upon the same facts. Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 (HC); British Fame (Owners) v Macgregor (Owners) [1943] AC 197 (HL) applied; (2) In the case of events having a multiple cause, the "but for" test must be tempered by the application of considerations of ordinary commonsense and experience. March v E and MH Stramare Pty Ltd and Anor (1991) 171 CLR 506 applied; Fitzgerald v Penn (1954) 91 CLR 268; Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd [No 2] (1987) 16 FCR 410 (FC) considered; (3) Having regard to (a) the extended failures of the medical practitioner; (b) the proved limited utility of the pathology test and (c) the high duty imposed on the practitioner with the continuing responsibility of diagnosis and care, it had not been shown that the apportionment made by the primary judge was wrong; (4) Appeals dismissed.