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. TORT — joint tortfeasors — contribution between — apportionment of liability having regard to respective responsibility of defendants for the damage — proper approach to apportionment in cases of multiple causes — misdiagnosis of cervical cancer resulting from medical practitioner's failure to appreciate significance of 2 UNREPORTED JUDGMENTS persistent vaginal bleeding and misreport of pathology test — primary judge apportions liability equally between tortfeasors — held: (on appeal by each tortfeasor) (dismissing the appeal): No error had been shown in the apportionment — apportionment confirmed. CONTRIBUTION — joint tortfeasors — assignment of responsibility for damage suffered by plaintiff — failure to diagnose cervical cancer in time for successful operative treatment — uncontested finding of negligence on part of general medical practitioner and pathology service — proper approach of appellate court — apportionment of responsibility in cases of multiple causes — whether last opportunity to retrieve earlier negligence was lost — whether, upon proper construction of facts, earlier extended misdiagnosis should have attracted larger apportionment — held: (dismissing appeal): Apportionment confirmed — discussion of responsibility for damage in cases of wrongs having multiple causes — need for commonsense approach. March vy E and MH Stramare Pty Ltd and Anor (1991) 171 CLR 506 applied. TRADE PRACTICES — misleading and deceptive conduct — claim for indemnity under Act — incorrect report by pathology service to medical practitioner — accepted that accurate report would have propelled practitioner into reference of patient to specialist which would have set in train steps for operative intervention to save patient's life in time — also established that medical practitioner had earlier persistently acted in breach of duty of care to patient reporting vaginal bleeding — limited utility and reliability of pathology reports established — report provided indicates some abnormalities — report accompanied by abnormal signs — primary judge apportions liability equally between medical practitioner and pathology service — dismisses claim under Trade Practices Act 1974 (Cth), s52, s82 and Fair Trading Act 1987 — on appeal — held: (1) In order to recover damages for misleading or deceptive conduct under the Act, it must be established that the loss or damage was caused by the conduct of the party in breach. Elders Trustee and Executor Co Ltd and EG Reeves Pty Ltd and Ors (1987) 78 ALR 193 (FC) applied; (2) Upon the facts found, the losses of the medical practitioner were not caused by any misleading or deceptive conduct by the pathology service or at least beyond the extent found by the application of the contribution legislation; (3) Appeal, upon this ground, dismissed. WORDS AND PHRASES — "by" — "misleading and deceptive". Law Reform (Miscellaneous Provisions) Act 1946, s5(2). Fair Trading Act 1987, s42. Trade Practices Act 1974 (Cth) s52, s82. Kirby P These reasons address the final matter remaining for judgment in litigation which arose out of tragic circumstances. The cross-appeals before the Court concern challenges to the decision of the primary Judge (Smart J) on the apportionment of legal responsibility between tortfeasors found to be responsible for the tragedy. A PATIENT OBTAINS AND HOLDS A JUDGMENT FOR MEDICAL NEGLIGENCE On 13 February 1989, the plaintiff, (Ms Rhonda O'Shea) was found to have cervical cancer. This diagnosis followed investigation and subsequent diagnosis by Professor AJ Crandon. Shortly after the diagnosis, in March of the same year, Professor Crandon performed a radical hysterectomy and lymphadenectomy in an attempt (futile as it proved) to arrest the advanced state of the cancer. Ms O'Shea made a relatively successful, although far from painless, recovery from the operations. Indeed she was at first diagnosed to be clinically free of the WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIB PATHOLOGY SERVICES PTY LTD (Kirby P) cancer. However, after three years she relapsed. There followed a series of painful operations and periods of recuperation which ended in her death on 22 June 1994. Before her death, Ms O'Shea successfully brought legal proceedings against both her general practitioner, Dr Susan Sullivan, and Macquarie Pathology Services Pty Ltd (Macquarie Pathology) for negligence in failing to detect the cancer at a stage when it would still have been susceptible to successful operative treatment. At trial, in May 1994, Smart J held that had either of the defendants (the present appellants) exercised reasonable care in carrying out their respective duties to the Ms O'Shea, there would not have been such delay in diagnosing, locating and operating upon the cancer. It was this delay which resulted in the cancer's spreading. It was that spread which rendered the cancer incapable of being successfully treated. This deprived the Ms O'Shea of what had otherwise been the probability of being cured. At trial, the matter proceeded on the footing that had the correct treatment been initiated before I December 1988, surgical intervention would have ensued which would probably have been successful in fully excising the cancer. Smart J awarded Ms O'Shea a total of $442,318 in damages. He held both Dr Sullivan and Macquarie Pathology equally responsible for the payment of the damages. That judgment was the subject of an appeal to this Court. In that appeal, the findings of negligence on the part of each of the defendants was not challenged. In a judgment delivered on 16 August 1994, the Court (Mahoney AP, Clarke and Powell JJA), upheld Smart J's judgment and his quantification of Ms O'Shea!s damages. It remains for this Court, reconstituted without objection for these proceedings, to determine the remaining issues raised by the competing cross-appeals instituted by Dr Sullivan and Macquarie Pathology, challenging the apportionment between them of the liability found by Smart J. By their cross-claims at trial, both Dr Sullivan and Macquarie Pathology sought indemnity or contribution pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946. Dr Sullivan also sought damages resulting from alleged breaches of s52 of the Trade Practices Act 1974 (Cth) and/or s42 of the Fair Trading Act 1987. It was with respect to the first cross-claim that Smart J attributed liability for the negligence of the defendants in equal proportions. His Honour went on to dismiss the claims for damages under s52 of the Trade Practices Act and its New South Wales equivalent. The matters which were the subject of the cross-claims at trial are now before this Court in the cross-appeals. Nothing in the present arguments required the presence of Ms O'Shea's legal personal representative. The judgment moneys had, as the Court was informed, already been paid to the legal representative. The outcome of this appeal will not affect the position of Ms O'Shea's estate in any way. LIABILITY FOR FAILURE PROMPTLY TO DISCOVER CERVICAL CANCER The facts which led Smart J to his finding of negligence on the part both of Dr Sullivan and Macquarie Pathology (Macquarie) need to be recalled. They are crucial to the determination of the challenge to his Honour's apportionment of responsibility between the appellants. From about August 1987, Ms O'Shea suffered intermittently from inter-menstrual bleeding. Dr Sullivan, Ms O'Shea's general medical practitioner, was aware of the bleeding and of the fact that Ms O'Shea had earlier consulted a specialist gynaecologist without result. A Pap smear test taken at that time did not reveal any abnormalities. In October 1987, Dr Sullivan noted that Ms O'Shea 4 UNREPORTED JUDGMENTS had reported post-coital bleeding which she interpreted then as 'break-through' bleeding. This irregular bleeding continued into November 1987. It attracted no particular indication of concern from Dr Sullivan. She attributed the bleeding to hormonal irregularities associated with her taking the contraceptive pill. It is important to note that the possible significance of the bleeding was never impressed by Dr Sullivan on Ms O'Shea, in order that she should be sure to report any further instances of post-coital bleeding. Nor was the bleeding specifically followed up at future consultations by Dr Sullivan. Smart J accepted Ms O'Shea's evidence that such bleeding had continued into July 1988, when it was specifically noted that she had declined to have sexual intercourse with her fiance, Mr Brian Micallef, on his birthday because of the distress about the bleeding which would accompany sexual intercourse. Ms O'Shea gave evidence, also accepted, that she began bleeding from the vagina, virtually continuously, from about August 1988. Ms O'Shea certainly consulted Dr Sullivan on 18 July 1988. Although the latter had no record of any complaint of post-coital bleeding, Smart J found that, "[g]liven Ms O'Shea's personality and disposition including her marked concern about untoward or unexplained bleeding and her recent experiences with Mr Micallef she probably did refer to some post intercourse bleeding on 18 July 1988 in a matter of fact way. It may not have been emphatic and its significance probably did not register with Dr Sullivan. Ms O' Shea does not dramatise matters but she does make her point." Ms O'Shea again visited Dr Sullivan on 29 August 1988 complaining of the persistent bleeding. Dr Sullivan told her to come back in a few days when the bleeding had stopped in order to have a Pap smear test. This she did, on 12 September 1988. The doctor noted "nil (bleeding) post i/c" which Smart J could only explain as perhaps referring to the short period when bleeding stopped for a sufficient time for Ms O'Shea to undergo the smear test. Whilst the evidence as to whether sexual intercourse continued between 29 August 1988 and 12 September 1988 was unclear, Smart J found that it probably did continue and that "the question of bleeding throughout the whole period between 29 August and 12 September 1988 was not sufficiently explored." It is also pertinent to note that at the consultation on 12 September 1988, Dr Sullivan saw what she took to be a "benign erosion" which she thought was a cause of the post-coital bleeding. According to the evidence of Professor Crandon, which Smart J accepted, this erosion was, in fact probably a sign of what was subsequently diagnosed as cancer. The results of the smear test were received in a written report from Macquarie Pathology dated 17 September 1988. It reported "mild squamous atypia possibly due to inflammation" with a suggested repeat test in 3-6 months. Dr Sullivan assured Ms O'Shea that day that there was nothing to worry about. She was advised to return in 3-4 months if symptoms continued. Ms O'Shea consulted Dr Sullivan once more on 27 October 1988, again complaining of recurrent inter-menstrual and post-coital bleeding. Dr Sullivan's notes for that day indicate that there was no inter-menstrual bleeding present on examination but added that, should the "abnormality persist", Ms O'Shea should be referred for a colposcopy. It is unclear whether the "abnormality" refers to the bleeding or the irregularity revealed by the results of the smear test. Smart J in his reasons preferred the evidence of Ms O'Shea and Mr Micallef as to the bleeding, to that of Dr Sullivan. His Honour concluded that Dr Sullivan was "coloured by her belief that Ms WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD (Kirby P) O'Shea was suffering from hormonal problems and that she did not regard the bleeding as other than a relatively minor problem with which Ms O'Shea could cope. " Dr Sullivan did not impress upon Ms O'Shea the significance of reporting further post-coital bleeding. Nor did she mention that a possible cause of the persistent bleeding might have been cancer which would have alerted the patient to the possible need for vigilance and specialist advice which would have produced a heightened sense of urgency about her persisting condition. Nevertheless, concerned at the continued symptoms of bleeding and the apparent inability of Dr Sullivan to treat it effectively, Ms O'Shea consulted another general medical practitioner in December 1988. She promptly referred her to a gynaecologist whom she told of the recurrent post-coital bleeding. She was immediately referred to Professor Crandon, a specialist gynaecologist. He diagnosed carcinoma of the cervix. Shortly after, he performed the operations to which I have earlier referred. Upon further inquiry by Professor Crandon, it was discovered that the smear test performed on 12 September 1988 had been misinterpreted by Macquarie Pathology. A correct interpretation and report by that company should have revealed the presence of pre-cursor lesions (CIN 3) of the cancerous development rather than-just "mild squamous atypia". Smart J found that by February 1989, the cancer discovered by Professor Crandon had reached the macro-invasive stage. On the expert evidence accepted by his Honour, secondary spreading of the cancer, or metastasis, would not have commenced before I December 1988. It was this conclusion which led to the finding that had Ms O'Shea been referred to a specialist in late August or early September 1988, the cancer would have been accurately diagnosed and operated upon while still in the micro-invasive stage. Smart J found that had that been done, Ms O'Shea's cancer would have been arrested in time to save her life. None of the foregoing findings were challenged in these cross-appeals. Neither were his Honour's findings as to the negligence of both defendants in failing to ensure the cancer was diagnosed at that earlier, and operable, stage. Smart J concluded, in terms which have been accepted for the purposes of the cross appeals: "\.. a prudent medical practitioner should, with a patient with a recurrence of post-coital bleeding, refer the patient to a gynaecologist. [Professor Crandon] thought that she should have been so referred on 29 August 1988 bearing in mind the matters revealed by Dr Sullivan's notes on that day. The earlier report of post-coital bleeding in October 1987 should not and could not be disregarded He thought that it would have been reasonable to do a Pap smear. If it came back positive that report would be before the gynaecologist for his consideration. If it was negative it should be disregarded [He] was of the view that Dr Sullivan, in failing to refer Ms O'Shea to a specialist gynaecologist on 29 August 1988, had not acted as a prudent general practitioner would... Professor Crandon thought that Dr Sullivan's management of Ms O'Shea consequent upon the recept of the Pap smear report was not reasonable. While the presence of "mild atypia" alone would be adequately handled by a repeat Pap smear in 3 to 6 months there was more in the present case.... He regarded [Dr Sullivan's] conservative management during the period August to October 1988 as not consistent with good medical practice on Dr Sullivan's part. I share Professor Crandon's views." 6 UNREPORTED JUDGMENTS Smart J concluded that Dr Sullivan, in her treatment of Ms O'Shea, had departed from the reasonable standard of care to be expected from practising general medical practitioners. He also found that, in failing correctly to interpret the slide of the smear test, Macquarie Pathology had breached its duty of care and was liable in negligence. His Honour found that there was a marked difference between "mild atypia" and CIN 3 which could not be passed off as mere differences of interpretation. He accepted that metastasis would not have occurred by 12 September 1994 and that failure to interpret the slide accurately delayed the prompt treatment which would otherwise have followed. Smart J therefore found both of the appellants to have been negligent. Accordingly, he turned to the apportionment of responsibility between them. THE PRIMARY JUDGE'S FINDINGS AS TO THE RESPONSIBILITY OF THE TORT-FEASORS The cross-claims for contribution or indemnity were brought primarily pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946. subs2 of that section provides: s5(2) "In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage;... " Smart J found that Ms O'Shea should have been referred by Dr Sullivan to a specialist at the latest on 29 August 1988 having regard to her then existing symptoms. This should have been done in order to exclude the possibility of cancer. In the ordinary course of events following such a referral, an appointment would have been obtained and the cancer fully investigated within about 4 weeks of that date. Failure so to refer the patient at that stage was contrary to the requirements of ordinary competence that could be expected of a general practitioner exercising reasonable skill and care. However, Smart J also found that, had the smear test of 12 September indicated CIN 3, Dr Sullivan would have recognised the need for an immediate referral to a specialist. Had that been done, it would have led to an operation, probably during October 1988. This, it will be observed, was still within time for successful surgery. Smart J then concluded that had "... either Dr Sullivan... referred the plaintiff on 29 August 1988 to a gynaecologist or Macquarie... correctly reported the results of the Pap smear the departure from reasonable standards of the other probably would not have mattered What is so unfortunate is that both failed to meet the standard of reasonable care in the discharge of their obligations and duties. In my opinion Dr Sullivan and Macquarie should be held equally liable for the damages payable to the plaintiff... " It is from that finding of equal responsibility, and the orders which followed, that both Dr Sullivan and Macquarie Pathology have cross-appealed to this Court. APPELLATE RESTRAINT IN DISTURBING APPORTIONMENT DECISIONS Before addressing the issues of causation, it is necessary to consider the rules which govern appellate review of apportionment of responsibility among tortfeasors. A decision by a trial judge as to what amounts to 'just and equitable' apportionment of responsibility and blameworthiness under legislation such as s5 of the Law Reform (Miscellaneous Provisions) Act 1946 invokes a broad discretion with which appellate courts will be hesitant to interfere. See WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIZ PATHOLOGY SERVICES PTY LTD (Kirby P) Pennington v Norris (1956) 96 CLR 10, Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 (HC) at 532, The Public Trustee v Sutherland Shire Council [1992] Aust Torts Reports para81-149 at 61,142 (NSWCA). In Podrebersek, the High Court of Australia, at 532, quoted with approval the decision of the House of Lords in British Fame (Owners) v Macgregor (Owners) [1943] AC 197 (HL) at 201, where it was held that a finding on a question of apportionment is a finding upon a: "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds". The High Court, and this Court, have made it clear that such a finding will rarely be disturbed. An apportionment will only be set aside and redetermined if the trial judge has either obviously proceeded on a misunderstanding of the evidence or, alternatively, has clearly assessed the evidence incorrectly in evaluating the parties' comparative blameworthiness. See also Watt v Bretag (1982) 56 ALJR 760 (HC) at 761. The trial judge is required to compare the parties' relative culpability in causing the damage. This involves, amongst other things, consideration of the extent of the departure from the reasonable standard of care which sustains the primary finding of negligence, the comparative gravity of the risk involved in the respective actions of the tortfeasors and the relative importance of their acts in causing the damage proved. See Podrebersek (above) at 532; Stapley v Gypsum Mines Ltd [1953] AC 663 (HL) at 682. An appellate court must consider whether or not the primary judge has failed satisfactorily to address the mind to the relative importance of the parties' respective actions or defaults in the causation of the damage found, or has so misinterpreted the weight of the evidence in making such comparison, as to render the decision plainly an unjust or inequitable one. Only such a conclusion will warrant an appellate reapportionment of responsibility under the statute. A REASSESSMENT OF THE CAUSATION OF THE PATIENT'S DAMAGE Apportionment of liability necessarily invokes a reconsideration of the relative causal significance of each tortfeasor's negligence in respect of the damage suffered by the plaintiff. Cases where a plaintiff's damage may be attributed to more than one cause present some of the most conceptually difficult questions in the law of torts. See Kooragang Cement v Bates, Court of Appeal (NSW), unreported, 20 December 1994, (1994) NSWJB 145 applying Morris v George and Ors [1977) 2 NSWLR 552 (CA) per Glass JA, at 579; Pirelli Ericsson Cables Ltd (formerly Conqueror Cables Pty Ltd) v Spadina and Anor, Court of Appeal (NSW), unreported, 24 April 1986; (1986) NSWJB 92. Professor John Fleming, in his discussion of factors relevant for consideration under apportionment legislation, asks: "[t]he parties' misconduct must of course have been causal, but in what sense can one be more causal than another?" Cf JG Fleming, The Law of Torts, 8th ed 1992, Law Book Co Sydney, 274. He also cites S Chapman, "Apportionment of Liability Between Tortfeasors", (1948) 64 LQR 26 at 28 commenting: "Causation itself is difficult enough; degrees of causation would really be a nightmare". See also M Jones, "Multiple Causation and Intervening Acts", (1994) 2 The Tort Law Review 133. 8 UNREPORTED JUDGMENTS The formulae which the law has enlisted to deal with the attribution of responsibility amongst tortfeasors with respect to matters of causation of damage often fail to acknowledge the logical reality that no single cause can be held responsible, in isolation, for any particular condition which is typically the result of a multitude of causes and circumstances. See Gummow J in Elna Australia Pty Lid v International Computers (Australia) Pty Ltd (1987) 16 FCR 410, 418. Despite the difficulties, a selection of one, or a few causes, of many is what the law typically requires. The manner by which particular causes are isolated may serve to reduce the logical implausibility of the law's imperatives. The so-called "but for" test, (causa sine qua non), once enjoyed wide-spread acceptance as a method for ascertaining the objective solution to whether a defendant's action caused, in fact, the damage suffered by the plaintiff. This was to be contrasted with the more policy-oriented issue of the extent to which the defendant should be held "responsible" for the consequences of those actions. In Alford v Magee (1952) 85 CLR 437 and later in March v Stramare (1991) 171 CLR 506 the High Court of Australia threw doubt on the "but for" test as a conclusive way of determining causal responsibility in the law, particularly with respect to the apportionment of blame between two or more defendants. A majority of the High Court in March highlighted the limitations of the test in cases involving multiple acts of causation, each of which would have been sufficient, standing alone, to bring about the damage suffered. Deane J stated, at 523; "\.. unqualified acceptance of the 'but for' test as even a negative or exclusionary test of causation... would lead to the absurd and unjust position that there was no 'cause' of an injury in any case where there were present two independent and sufficient causes of the accident in which the injury was sustained. See also Mason CJ at 516. The majority of the High Court in March insisted on the need in such cases to concentrate on the common laws tradition of applying common sense to the facts of each particular case. See Mason CJ, at 515 and Deane J, at 522-523. See also Fizgerald v Penn (1954) 91 CLR 268, 277 and Stapley v Gypsum Mines Ltd 1953] AC 663 (HL), 68 1. Deane J in March, at 522, remarked: "Causation in the context of the elements of the tort of negligence is not the same thing as the 'scientific term descriptive of sequence in physical phenomena' (Clerk and Lindsell on Torts, 16th ed (1989), paral-paral03;... For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or RESPONSIBILITY WHETHER AN IDENTIFIED NEGLIGENT ACT OR OMISSION OF THE DEFENDANT WAS SO CONNECTED WITH THE PLAINTIFF'S LOSS OR INJURY THAT, AS A MATTER OF ORDINARY COMMON SENSE AND EXPERIENCE, IT SHOULD BE REGARDED AS A CAUSE OF IT. " (emphasis added) A similar common-sense approach had earlier been adopted by the High Court in Podrebersek (above) at 533, when it becomes necessary to apportion liability between joint or several tortfeasors according to the relative causal significance of each party's found negligence. The Court there said: "Tt is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. Earlier still, a similar approach had been adopted by the English courts in applying apportionment legislation. See eg Davies v Swan Motor Co (Swansea) Ltd,- James, Third Party [19491 2 KB 291 (CA), 322. WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD (Kirby P) Returning to the present cross appeals, the question is whether it may be concluded that Smart J, in assessing the causative effects of both Dr Sullivan's and Macquarie's negligence, incorrectly assessed their relative significance in relation to the damage suffered by Ms O'Shea. Approaching that question in the common sense way enjoined in March, and with the restraint required by Podrebersek, has it been shown that Smart J's view of the apportionment of responsibility between the two appellants was wrong? I state at the outset that such an assessment necessarily highlights the difficulty faced by a court of law in attributing legal responsibility to medical processes which are so dependent both on the intuition of the medical practitioner and the perception of the technician who interprets the slide of a smear test. Finding negligence in the carrying out of such procedures is a task which is already complicated enough, particularly if compared to the issues of causation which are involved in other tortious claims, such as motor vehicle accidents, where a simpler assessment of cause and effect is usually possible. To attribute relative weight to the findings of negligence on the part of skilled medical practitioners and pathology technicians must be approached with a degree of caution, particularly in an appellate court, for the reason that, upon such questions, minds may reasonably differ. While not challenging Smart J's finding of negligence, Dr Sullivan's argument before this Court sought to address the causative effect which her negligence actually had on the diagnosis and treatment of Ms O'Shea's cancer. Counsel pointed out that Dr Sullivan was only held to be negligent in not referring her patient for specialist investigation on and after the consultation of 29 August 1988, when post-coital bleeding was again reported and Ms O'Shea was informed to return on cessation of the bleeding in order to have a smear test done. The inaccurate report on this test was received by Dr Sullivan on 17 September 1988, who then reassured the patient that there was nothing to be concerned about. Smart J accepted that, had Dr Sullivan received a report from Macquarie which had showed the presence of CIN 3 cells, "... itis probable that an early appointment would have been arranged and that Ms O'Shea would have been examined and assessed promptly and operated upon during October 1988. A correct Pap smear report would have brought home to everyone the potentially dangerous condition of Ms O'Shea and the need to act expeditiously." ARGUMENT OF THE LOSS OF OPPORTUNITY TO PREVENT THE FATAL DAMAGE It was put to the Court for Dr Sullivan that, had she received a correct report from Macquarie Pathology there would have been a last chance to retrieve all of her past mistakes and to set in train the course of treatment that would have saved the patient's life. That Dr Sullivan was found negligent in that interim period should not therefore have been reflected in the apportioning of liability as, even on Smart J's findings, the effect of her negligence was subsequently eclipsed by that of Macquarie Pathology. To formulate the issue in the terms of the "but for" test, had Macquarie Pathology not been negligent in interpreting the slide, Dr Sullivan's negligence in failing to refer Ms O'Shea to a specialist prior to 29 August would not have resulted in any damage being caused to her once it is accepted that she would immediately have made an appointment with a specialist if CIN 3 cells had been 10 UNREPORTED JUDGMENTS accurately reported. But for Macquarie Pathology's inaccurate report, Dr Sullivan would probably have retrieved her position, avoided liability and saved the patient. This argument is a tempting one, particularly as it is expressed to rest precisely upon Smart J's findings of negligence on Dr Sullivan's part. It is simply argued that the relative importance of the breach of Macquarie Pathology's duty of care (both to the patient and to the general practitioners in providing an accurate diagnostic tool with which more accurately to understand the patient s symptoms, was greater and should be reflected, as such, in the apportionment of greater liability under the legislation. However, the premises upon which this argument is based, and the conclusions which follow, demand closer scrutiny. Dr Sullivan was found by Smart J to have been negligent quite independently of Macquarie Pathology's negligent interpretation and report of Ms O'Shea's smear test. This was largely because of her failure to take appropriate early measures to exclude cancer as a possible cause for the patient's repeated complaints of post-coital bleeding and because of her too casual attribution of the bleeding to hormonal problems associated with the contraceptive pill. Added also to this was Dr Sullivan's failure adequately to impress on Ms O'Shea the significance of the occurrence of post-coital bleeding, given that cancer was a possible cause. Such a symptom was so potentially serious that it had to be affirmatively excluded as an indicium of cancer as quickly as possible. Nor should it be forgotten that Smart J's finding of Dr Sullivan's negligence went beyond her failure to refer the patient for specialist opinion after 29 August 1988. It extended to the continued failure, even upon receipt of the incorrect test results. The report did not convey affirmatively that all was satisfactory. It reported "mild squamous atypia." Dr Sullivan, in her evidence, reported having seen what she thought was a "benign erosion" on Ms O'Shea's cervix at the consultation when the swab for the smear test was taken. Thus, one can only assume that this, together with the persistent bleeding complained of, prompted a test which, it was anticipated, might have revealed some sort of abnormality. This was in fact reported, although admittedly not sufficiently accurately to have prompted immediate action on Dr Sullivan's part. The task of a general medical practitioner is relevantly one of diagnosis, or at least recognition, of sufficient symptoms which warrant referral to an appropriate medical specialist for further expert investigation. Where a condition is potentially life-threatening and where early treatment is essential, it is reasonable to expect a very high sense of vigilance. It was Dr Sullivan's failure to fulfil this duty, particularly given the persistent bleeding and the report of some abnormalities on the slide of the patients pathology test, which Smart J found to constitute negligence on Dr Sullivan's part. The import of Dr Sullivan's continued failure to refer her patient for specialist opinion, even after having received the incorrect but not entirely normal results, was underlined by Professor Crandon's evidence at trial. That evidence was accepted by Smart J. While Professor Crandon agreed that it was reasonable to have conducted a smear test when Dr Sullivan did, he went on to say that, given the symptoms which she had already observed: "\.. if [the smear test] came back positive that report would be before the gynaecologist for consideration. IF IT WAS NEGATIVE IT SHOULD BE DISREGARDED... While the presence of 'mild atypia' alone would be adequately handled by a repeat Pap smear in 3 to 6 months there was more in the present case. There had been a history of recurrent post coital bleeding. Further, WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD (Kirby P) the smear suggested the possibility of inflammation which would raise suspicion of other trouble, possibly cancer. " (emphasis added) Also significant is Smart J's finding that Dr Sullivan!s conservative management of Ms O'Shea was inconsistent with good medical practice. In this regard, his Honour accepted Professor Crandon's evidence that once symptoms of the kind described existed, a patient should be referred promptly for specialist opinion, regardless of test results. This was because of the possibility of false negative results ensuing from smear tests. This risk can be as high as 20%, particularly if the lesion is well advanced. Furthermore, it should constantly be borne in mind by general practitioners that Pap smear tests are to be considered useful only as a screening test and not as a tool for reliable diagnosis. This is precisely because of the possibility that they may be misinterpreted or reveal inaccurate results even on careful interpretation. Therefore, Dr Sullivan's expectation that the test would be accurately indicative, one way or the other, of the presence of cancer was also negligent. Dr Sullivan's negligence was thus adequately established quite independently of, and prior to, Macquarie Pathology's misinterpretation of the Pap smear test. It was found to continue even after the receipt of the incorrect results, given the existence and persistence of other symptoms from which Ms O'Shea was suffering. Would this Court be justified, however, in concluding that none of the foregoing negligent acts and omissions on the part of Dr Sullivan would have resulted in the damage suffered by Ms O'Shea as a result of both parties failing to comply satisfactorily with their respective duties of care, if Macquarie Pathology had not been negligent in the report supplied to Dr Sullivan? Such a finding with respect to the issue of causation would necessarily require a reduction of Dr Sullivan's liability from that of fifty percent. That was the issue which ultimately occupied most of the time of argument in these proceedings. The "but for" test may be a useful tool in assessing the relative causative effects of various acts of negligence in, for example, litigation arising out of a motor vehicle accident. Mason CJ in March v Stramare (above) at 516, uses the example of both A and B driving their vehicles at negligently excessive speeds in conditions where visibility is poor. B collided with A while driving on the wrong side of the road whereas A was found to have been driving on the correct side, although of an excessive speed. Mason CJ recounts that in Fitzgerald v Penn (1954) 91 CLR 268 at 276-277, Dixon CJ, Fullagar and Kitto JJ considered that, upon such hypotheses, a trial judge would have been justified in framing the question for a jury in terms of the "but for" test and asking them: "whether they were satisfied that the collision would not have taken place with the same results if driver A had been driving at a reasonable speed." The justification behind such a conclusion is, it seems to me, largely based on the fact that the hypothetical answer involves asking oneself, "...but for X, would Y have happened?..." This is relatively straightforward, even acknowledging the logical fallacies involved in such reasoning. The difficulties involved in determining causation by such methods were explained by Gleeson CJ in The Public Trustee v Sutherland Shire Council (above) at 61,139. See also Trevali Pty Ltd (trading as Campbelltown Roller Rink) v Haddad 1989] Aust Torts Reports para80-286 (NSWCA) at 69,034. The ability satisfactorily to predict what WOULD HAVE been the case, had another course of action been taken, or had there not been an omission to act, will necessarily vary according to the facts of each case. Where the facts do not lend 12 UNREPORTED JUDGMENTS themselves to adequate hypothetical prediction, the "but for" test ought to be tempered with commonsense and appropriate considerations of policy. Into such a category must fall cases involving the intuitive interpretations and subjective observations inherent in issues of medical procedure. Having outlined not only the nature of Dr Sullivan's negligence, but also the manner in which general practitioners should rely on Pap smear tests as screening aids (as opposed to tools on which they may legitimately rely for diagnostic purposes), I cannot conclude, as Dr Sullivan contended, that her negligence was for all practical purposes eclipsed by that of Macquarie Pathology. Had Dr Sullivan been acting with due care and in accordance proved professional standards, she would have referred Ms O'Shea for specialist care earlier. She would have responded more speedily and resolutely to the danger evidenced by reports of persistent bleeding. She would not have put so much faith in a pathology test report which she should have known would itself have risks of false results. She had enough in the way of persistent symptoms reported to her to have acted with greater speed and decisiveness. Had she done so, the test result from Macquarie Pathology would, if performed at all, have assumed its proper minor role in the course of the proper diagnosis and treatment of the patient's persisting condition. A JUST AND EQUITABLE APPORTIONMENT OF CAUSAL RESPONSIBILITY FOR THE DAMAGE Given the finding that Dr Sullivan's responsibility for Ms O'Shea's damage was therefore not completely eclipsed by that of Macquarie Pathology, the issue of the COMPARATIVE culpability and causative significance of the departure from the standards of reasonable care remains to be considered. Counsel for Dr Sullivan suggested that Smart J, in dealing with the cross-claims at first instance, failed adequately to compare the degrees of responsibility to be attributed to each party, being satisfied with his conclusion that had either party not been negligent, probably no damage at all would have resulted from the other's negligence. The logical conclusion to be drawn from this finding was that both parties should be held equally responsible. Significantly, Smart J acknowledged that, had the Pap smear been accurate, there would have been a speedier referral to a specialist. However, his Honour also concludes that "there would not be a great deal of difference in point of time" between the two courses of action and the consequent diagnoses. He went on: It is my view that in each case the cancer probably would have been operated upon before secondary spreading had commenced." I do not agree with the submission for Dr Sullivan that Smart J failed to compare the relative blameworthiness of each party. That process of comparison is inherent in his Honour's very discussion of their respective acts and omissions of negligence. However, in order to test the suggestion that his Honour erred in his assessment of the comparative responsibility of the tortfeasors, I will make my own comparisons in order to decide whether there be any basis to re-examine the orders made at trial and to redistribute the responsibility between the tortfeasors which Smart J attributed to them in equal proportions. On the one hand, by accepting Dr Sullivan's evidence that she would have referred Ms O'Shea to a specialist immediately had the slide been correctly interpreted as revealing CIN 3 cells, Macquarie Pathology's negligence assumes a significant degree of gravity. Without further consideration, it would seem to warrant an apportionment of liability substantially greater than that of Dr Sullivan, whose negligence might not then have resulted in any compensable WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIB PATHOLOGY SERVICES PTY LTD (Kirby P) damage. I acknowledge that Macquarie Pathology owed a duty of care not only to Ms O'Shea, but also to her general practitioner. This should be a factor warranting consideration in the apportionment of liability for the damage to Ms O' Shea. Dr Sullivan's negligence persisted notwithstanding the symptoms with which she was repeatedly presented. Smart J accepted expert evidence suggesting that her actions, in the face of such symptoms, were inappropriate. Her negligence was established independently of that of Macquarie Pathology. It preceded the latter. It continued even following the receipt of the negligently interpreted report. These considerations remain the critical factors in viewing the comparative blameworthiness of Dr Sullivan's conduct. It may be accepted that, had Macquarie Pathology provided Dr Sullivan with a more accurate interpretation of the Pap smear test, she would not have hesitated in referring her patient to a specialist. However, precisely the same argument may be made in the face of Dr Sullivan's failure to refer Ms O'Shea earlier, or even subsequent to, that Pap smear test. Given the almost unanimous expert testimony accepted by Smart J, suggesting that even a completely clear test ought to have been ignored and Ms O'Shea referred to a specialist on her existing medical symptoms, Macquarie Pathology's negligence would then have been of limited actual significance as a cause of the damage. This argument carries more weight once it is remembered that the use which should be made of Pap smear tests is to be confined to that of a diagnostic tool. Dr Sullivan's negligence, in this regard was therefore even more marked given the fact that the report she did receive was by no means clear and should itself have probably warranted referral of Ms O'Shea to a specialist, particularly bearing in mind the earlier discovery of the erosion on the cervix. This argument is given still further weight in the context of Professor Fleming's comment that one of the factors to be taken into account in apportioning liability is the fact that one party may have been under a 'higher' duty to take care than the other. For example, an employer, compared with a mere licensor. See JG Fleming (above) at 264, referring to Braithwaite v S Durham Steel Co [1958] 1 WLR 986. Under such an argument, Dr Sullivan, as the diagnosing general practitioner most familiar with Ms O'Shea's symptoms, had a significantly broader duty based upon a larger field of data when compared to a pathologist company dealing simply with a report upon a routine slide. Whilst not disputing the negligence of Macquarie Pathology in interpreting the slide, it is my opinion that the high duty owed by a general medical practitioner to a patient should reflect itself in a high expectation of vigilance. This ought to be considered in the apportionment of responsibility under the Act. Bearing in mind all of the foregoing circumstances of the case, I am not convinced that either cross-appellant has demonstrated that Smart J was wrong in the apportionment which he made. It was a decision clearly open to him upon the evidence. This Court is not authorized, or warranted, to give effect to any different conclusion. Each tortfeasor was responsible. Each fell short of proper professional standards. Each could have prevented the fatal condition reaching an irreversible stage. That one could have done so early, and one late, does not remove or reduce the responsibility which each, equally, bears independently of the other. Attempts to differentiate between their respective responsibilities fail by the test of commonsense. It is by that criterion that the apportionment orders made at trial must be tested on appeal. By that test, the order of Smart J had not been shown to be wrong. In my view it was right. 14 UNREPORTED JUDGMENTS THE CROSS-CLAIM FOR INDEMNITY UNDER s52 AND s82 OF THE TRADE PRACTICES ACT Dr Sullivan also instituted a cross-claim, now the subject of a cross-appeal, under s52 and s82 of the Trade Practices Act, 1974, (Cth) (the Act) and the equivalent sections of the Fair Trading Act, 1987. She asserted that Macquarie Pathology, in providing an incorrect assessment of the Pap smear slide, had engaged in misleading and deceptive conduct for which it was liable to indemnify Dr Sullivan under s82 of the Act. Smart J was extremely reluctant to characterise the misinterpretation of the slide as action falling within the sections relied upon. He commented that "[i]t seems a little artificial and inapt to describe that as conduct that is misleading or deceptive. There is no difficulty in describing the service rendered as faulty and negligent. I baulk at the description of what happened as conduct that is misleading or deceptive or likely to mislead or deceive. Not every careless mistake that is made in carrying out a task or a process or service amounts to conduct that is misleading or deceptive or likely to mislead or deceive. $52 does not subsume the law of negligence." Counsel for Dr Sullivan argued that this finding was insufficient to dispose of the arguments, particularly given the acknowledgments that Macquarie Pathology's actions were certainly performed in the course of trade or commerce as required under the Act. There was little to be gleaned from Smart J's reasons, so it was submitted, as to why a negligent interpretation of a slide could not be similarly considered to "be misleading or deceptive." It is necessary initially to consider the nature of the loss or damage which is sought to be recovered under this argument. It is not the loss suffered by Ms O'Shea for which Macquarie Pathology was held directly responsible to Ms O'Sheaa. It is the loss incurred by Dr Sullivan on having been found jointly liable at common law for the negligence which, in part, led to the loss and injury for which those damages were awarded. It is this loss for which Dr Sullivan sought indemnification from Macquarie Pathology pursuant to the Act. The argument, although ingenious, is unconvincing. Smart J found Dr Sullivan to have been negligent in failing to refer Ms O'Shea to a specialist on 29 August 1988, even before the smear test had been misinterpreted and received by her. That negligence was found to have continued after the smear test had been received because of Dr Sullivan's continued failure to refer her patient to a specialist, when such referral was found to be required of a reasonable general medical practitioner in the circumstances. Her negligence has thus been found to exist independently of, and prior to, that of Macquarie Pathology. It rests on Dr Sullivan's own anterior, and subsequent, failure properly to diagnose the patient's condition. It is artificial to find that Dr Sullivan relied on a "misrepresentation" of the condition of her patient's cervix, in fact AFTER her failure to refer had already been found to be negligent, which negligence had already given rise to liability in damages. In order to recover damages for misleading and deceptive conduct under the Act, a claimant must establish that the loss or damage in question was caused by the conduct of the party in breach. See Gould and Anor v Vaggelas and Ors (1958) 157 CLR 215, 236; Leo and Ors v Brambles Holdings Ltd (1982) 65 FLR 310; (1982) 45 ALR 441 (FC). That is, the loss suffered must have arisen from, or out of, the misleading and deceptive conduct. This interpretation arises from the use of the preposition "by" in s82 of the Trade Practices Act. See Kabwand Pty Ltd and Ors v National Australia Bank Ltd [1989] ATPR 50,367 (FFC). On WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD (Kirby P) the foregoing analysis of Dr Sullivan's own negligence, to say that she would have acted differently and referred immediately, had the report been accurate, is not, as a matter of logic, or a matter of fact, to say that the report she did receive caused her to act in the negligent manner which she did in earlier failing to refer Ms O'Shea to a specialist. Her liability had been found to exist independently of, and prior to, Macquarie Pathology's acts. Many cases suggest that a claimant's own negligence or unreasonable behaviour may be relevant to indicating that a misrepresentation did not in fact cause the loss complained of See eg Elders Trustee and Executor Co Ltd and EG Reeves Pty Ltd and Ors (1987) 78 ALR 193 (FC) at 241; Munchies Management Pty Ltd and Anor v Belperio and Anor (1988) 84 ALR 700 (FFC) at 712 and Argy and Anor v Blunts and Lane Cove Real Estate Pty Ltd and Ors (1990) 94 ALR 719 (FC) at 744. This is not to say that a foolish or naive person may not recover damages under sections 52 and 82 of the Act upon being induced by a misrepresentation which no normal person would have taken seriously. See eg Sutton v AJ Thompson Pty Ltd (1987) 73 ALR 233 at 240. Nor is it to say that failure to verify a representation will necessarily deprive a claimant of a remedy. It is simply to underline the causative framework upon which damages under such a claim is based and the need, therefore, to ascertain whether or not the loss suffered was in reality caused by the contravention. That is, whether the representation did, IN FACT, mislead or deceive or was likely IN FACT so to have done. Hill J commented, in relation to such an argument in Argy v Blunts and Lane Cove Real Estate (above) at 744, where a Solicitor was found to have relied on a misleading zoning certificate attached to a contract of sale: "A case may perhaps be imagined where an applicant is so negligent in protecting his own interests that there will be a finding of fact that the representation complained of was not in the circumstances a real inducement to his entering into a contract. In such a case the element of causation between misrepresentation and damage will have been severed by the intervention of the negligence of the applicant." On the facts as found by Smart J, similar reasoning would apply to the argument that Dr Sullivan's negligence was caused by reliance on the misinterpreted slide. Such reasoning would be fatal to Dr Sullivan's claim under the Act, given Smart J's findings that Pap smear tests should only ever be used as an aid for screening purposes as opposed to a reliable diagnostic tool. Smart J also accepted the expert evidence suggesting that, even if the Pap smear slide had been reported as quite clear (which was not the case here), given the inherent potential for inaccuracy of such tests, it ought to have been disregarded and the patient referred anyway for specialist opinion. This merely adds weight to the argument that Dr Sullivan's reliance on the report of the slide could not reasonably be said to have occasioned the losses arising from the finding against her of negligence for failing to refer the patient to a specialist. Given the findings of negligence from which Ms O'Shea's damages flowed, and the analysis of causation outlined above, the issue of distribution of losses as between the cross appellants can only be dealt with as a matter of apportionment under the Act as found above. There is no entitlement in Dr Sullivan to indemnity under the Trade Practices Act or its local equivalent. Certainly, there is no entitlement for indemnity larger than the sum recovered under the apportionment legislation. 16 UNREPORTED JUDGMENTS Upon these conclusions, there is no need to address the further submissions made by counsel for Macquarie Pathology that, had a claim under s52 of the Act been successfully made out, the limitation period for such actions, imposed by s82 of the Act, had expired. ORDERS: CROSS APPEALS DISMISSED Each of the cross-appeals should be dismissed. I would make no order as to costs because each party has partly succeeded and partly failed. Mahoney JA The plaintiff Rhonda O'Shea sued the defendants Dr Susan Sullivan and Macquarie Pathology Services Pty Ltd for damages. Her claim was based upon the negligence of the defendants: of Dr Sullivan as her general practitioner and of the company in respect of a negligently inaccurate report as to her condition. On 6 May 1994 Smart J gave judgment for the plaintiff for $442,318. He directed that the defendants "should be equally liable for the damages": it is agreed that each thereby became liable for the whole of the damages and that, as between them, they should each bear one half of them. Appeals were brought against the judgment entered by his Honour. Because of the plaintiff s medical condition, the appeals in respect of liability were dealt with as a matter of urgency. On 16 August 1994 this Court upheld the judge's judgment in respect of those matters. Appeals had also been brought by each of the defendants against the orders which the judge made which resulted in their each being liable for, effectively, one half of the damages. The hearing of the appeals in that regard was stood over. Those appeals are now before the Court. I shall not recapitulate the facts by reference to which these appeals are to be decided. They have been set forth in detail in the detailed judgment of Smart J and have been referred to in the judgment of this Court of 16 August 1994. The appeal by Dr Sullivan was directed to two matters: the apportionment made by the learned judge pursuant to s5(2) of the Law Reform (Miscellaneous Provisions) Act 1946; and the dismissal by his Honour of Dr Sullivan's claim for damages based upon the provisions of the Trade Practices Act 1974. (a) THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946, s5(2): By s5 of the Act, a tortfeasor liable in respect of relevant damage may recover contribution from any other tortfeasor who is liable in respect of the same damage: s5(1)(c). S5(2) provides that in any proceedings for contribution under the section the amount of contribution recoverable "shall be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for that damage......". Each of the defendants was severally negligent: they were several but not joint tortfeasors. The negligence of the company was confined to one matter. On 19 September 1988 Dr Sullivan had taken a pap smear from the plaintiff and had forwarded it to the company for report. On or about 17 September 1988 the company orally reported to the doctor that the specimen did not contain relevant cancer cells. Subsequently it provided to her a written report to that effect. Its report was wrong and it was negligent in giving it. It was that negligence for which the company was held liable in damages. The negligence of Dr Sullivan was, or at least was argued to be, more complicated. Dr Sullivan had been consulted by the plaintiff as early as February 1987. The plaintiff had had, as I shall describe them compendiously, WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIZ PATHOLOGY SERVICES PTY LTD (Mahoney JA) gynaecological problems. These included irregular menstrual cycles. In due course, the plaintiff complained to Dr Sullivan of bleeding both between her menstrual cycles and following coition. At least by 18 July 1988 the plaintiff had told the doctor about post-coital bleeding. His Honour found she complained of it on 18 July 1988 and on 12 September 1988. His Honour found that, she having been told of such bleeding, it was negligent of Dr Sullivan not to have referred the plaintiff to specialist treatment at least by 12 September 1988. At the trial differing opinions were expressed as to the significance of bleeding of the relevant kind. His Honour concluded - and it is not now in question - that a general practitioner to whom such bleeding was reported would be lacking in the degree of skill and care required of her if she did not at once refer the patient for specialist care. (In fairness to Dr Sullivan, it is proper to record that at the time she did not hold that view and that there was other credible medical evidence to support her view. But, as I have said, upon the view accepted by the trial judge, she was negligent because, at least by 12 September 1988, she did not refer the plaintiff for specialist care). However, Dr Sullivan said at the trial that, had the company's report disclosed the existence of the relevant cancer cells, she would immediately have referred the plaintiff for specialist care. It is, I not seriously in contest but that she would have done so. The plaintiff saw the doctor on 27 October 1988. It is not necessary to pursue the detail of what occurred on that date. On 12 December 1988, the plaintiff consulted another doctor, Dr Catchlove. That doctor immediately referred the plaintiff for specialist care. The cancerous condition was discovered. However, notwithstanding the steps taken to deal with it, unfortunately the cancer proved terminal. The evidence at the trial indicated that, had the plaintiff s condition been the subject of specialist care early enough, the cancer could have been successfully treated. Various dates were conjectured as the date up to which this could have been achieved. For present purposes the matter has been dealt with upon the basis that, had the condition been the subject of specialist care by about 1 December 1988, it could have been successfully dealt with. It is against the background of these matters that Mr Harrison, for Dr Sullivan, has developed his submissions in the present appeal. At the risk of oversimplifying his submissions or of omitting aspects of them, they may be stated as follows. Dr Sullivan was negligent in failing to refer the plaintiff for specialist care. She should have done that following either the consultation of 29 August 1988 or that of 12 September 1988. Her negligence became, as it were, operative at that time. But, the submission suggested, had the. company not itself been negligent in failing to detect the relevant cancer cells, the doctor's negligence would have had no effect. Mr Harrison submitted that, had she been told of the existence of the relevant cancer cells, Dr Sullivan would immediately have referred the plaintiff for specialist care and that, if that had been done, her condition would have been successfully treated. Accordingly, it was submitted, the doctor's "responsibility for the damage" was less than that of the company. Mr Higgs' submission, for the company, was that this was an over-simple statement of the facts as found by the trial judge. His submission suggested a number of things. First, it suggested that, in assessing the responsibility for the damage caused to the plaintiff, the examination of the pap smear was, in a sense, irrelevant. If it be accepted that bleeding of the kind reported to Dr Sullivan had 18 UNREPORTED JUDGMENTS occurred her proper course of action was to refer the plaintiff for specialist care; she should not have troubled with the procedure with pap smear and analysis. Second, and associated with this, it was submitted that pap smear analysis of its nature is no more than an aid to assist the treating doctor to decide what to do; it does not determine what the future treatment of the patient should be. Mr Higgs submitted that the evidence showed that pap smear procedures are inherently subject to error and are known by medical practitioners to be such. There may be "false negatives" and the existence of relevant cancer cells may be overlooked. The submission suggested that, notwithstanding a report that the relevant cancer cells did not appear in the specimen, a practitioner exercising proper care and skill would yet have referred the plaintiff for specialist care. Third, it was suggested that the company's report did disclose that there were abnormal cells present, even though these were not classified, as they should have been, as CIN3 cells. It was submitted that the existence of that abnormality should, without more, have alerted Dr Sullivan to the need for specialist care. I shall not pursue in detail the arguments of counsel relating to causation and other matters. In Barnes v Hay (1988) 12 NSWLR 337 at 350-356, I expressed my views as to the concepts of causation adopted by the law: I shall not repeat what I there said. The matter has since been authoritatively examined in March v Eand MH Stramare Pty Lid (1990) 171 CLR 506; Medlin v State Government Insurance Commission (1995) 127 ALR 180. The problems which arise in the present case are typical of the problems which arise where there are more than one tortfeasor. The relationship which may exist between two torts may be of various kinds. The two defaults may operate concurrently to cause the damage suffered by the plaintiff, as where two inappropriate drugs are administered concurrently. One default may follow the other and increase the quantum of the damage or cause an additional but distinct kind of damage. Or the first default may (potentially) cause damage which would have been prevented if the second default had not occurred. Mr Harrison has submitted that the present case is of the third type and that Dr Sullivan's default would have ceased to have effect if the company had done what it should have done. His submissions suggest that her "responsibility" for the damage should be assessed accordingly. In deciding, for the purposes of the law, what is the cause of a particular loss or what is the "responsibility" which is to be apportioned or attributed to individual causes, the court makes a choice or value judgment. As I suggested in Barnes v Hay: at 352E; the real difficulty in the law of causation hes in the formulation of the principle, the verbal formula, by the application of which the court decides such matters. The statutory formula is "just and equitable" and refers to the "responsibility for' the damage. But such terms, if they assist in formulating the principle, do so only in terms which themselves require clarification. In the end, the matter is to be determined by (to adapt the language of Lord Radcliffe in Davis Contractors Ltd v Fareham Urban District Council (1956) AC 696 at 728-729) the fair and equitable person, "who represents after all no more than the anthropomorphic conception of justice". Whatever be the meaning given to "responsibility" the task of comparing these two defaults is a difficult one. On the evidence as analysed by the trial judge, the default of each defendant was serious and in the event each contributed in a real sense to the occurrence of the damage which ultimately the plaintiff bore. There is no arithmetical measure by which they can be compared nor is there, I think, any other form of calculus the application of which will indicate the degree of WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUARIE PATHOLOGY SERVICES PTY LTD (Mahoney JA) responsibility for the damage which each bears. As I have suggested, the matter is, in a case such as this, peculiarly one of assessment. Were I deciding the matter at the trial, I would come to the same conclusion as the learned judge. Insofar as what is involved is properly to be described as the examination of a discretionary judgment, I do not think that this Court should interfere with it. It has not been suggested that there was any error of principle or of fact or any other basis on which, other than impression, his Honour's judgment, as a discretionary judgment, should be set aside. Reference was made by Mr Harrison to the view expressed in some of the cases that a judgment of the present kind is peculiarly one which should not be set aside except for demonstrated error. Reference has been made to considerations of this kind in, eg, Pennington v Norris (1956) 96 CLR 10 at 15-16; see generally Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492. There is, in my opinion, force in this consideration. However, for reasons to which I shall refer, I shall not rely upon it in the present appeal. In my opinion the arguments of the appellants in this regard should not be accepted. I see no reason to interfere with the judge's assessment. (b) TRADE PRACTICES ACT - It was submitted by Mr Harrison for Dr Sullivan that the report given to her by the company constituted false or misleading conduct by the company and that she was entitled to damages, amounting to an indemnity, for that reason. The trial judge was of the view that the Trade Practices Act did not apply to the present transaction. His Honour dealt at length with the submissions made. I do not that it is necessary to deal with this aspect of the matter. Mr Harrison, when asked, indicated that the importance of the claim under the Trade Practices Act was essentially that if the Court should refuse to interfere with the apportionment made under s5(2) by reason of a particular reluctance to interfere with such apportionments, such reluctance would not apply in the determination of a trade practices claim of this kind or in the award of damages for it. It is sufficient, I to indicate that, as I have said, I would at trial level make the same apportionment as was made by the learned judge. I would dismiss the appeal in that regard for that reason. On that basis it is not necessary to consider whether, had I been of a different view, I would have awarded damages under the Trade Practices Act of such order as would have produced the same result. In my opinion, therefore, each of the appeals in this regard should be dismissed. There is, in my opinion, no reason to differentiate, qua costs, between the two appeals. The Court has been informed that the present matter does not concern the plaintiff and provision has been made for the damages accordingly. It has not been suggested that the existence of the present appeals affects costs so far as concerns the plaintiff or her legal personal representative. As between the two defendants, if each appeal were treated as an appeal against the other defendant, as effectively it has been, I would see no reason to differ between them as to the amount of costs which would be payable. In these circumstances, the two defendants should be ordered to pay their own costs of the present part of the proceeding. I note that, in relation to the matters previously argued, the appeals by the defendants were dismissed with costs. The costs now in question are accordingly the costs insofar as they relate to the matters now raised before the Court. 20 UNREPORTED JUDGMENTS Clarke JA Rhonda O'Shea developed cervical cancer. She sued her general practitioner, Dr Susan Sullivan ("Sullivan") and a pathology company, Macquarie Pathology Services Pty Ltd ("Macquarie") alleging that their negligence denied her the chance that her cancer would be cured. It was her case that if the cancer had been detected prior to 1 December 1988 then there was a very high chance that she would have survived. The cancer was not detected until early 1989 by which time her chance of survival had all but disappeared. She died on 22 June 1994 but prior to her death she had secured a judgment in her favour for damages from Smart J. Both Sullivan and Macquarie appealed from that judgment but only upon the ground that the damages awarded by his Honour were excessive. That appeal failed. His Honour also dealt with cross-claims by each of Sullivan and Macquarie pursuant to which they each sought contribution or indemnity from the other in respect of any damages that they were each found liable to pay Ms O'Shea. Sullivan's claim was based on the contribution provisions of the Law Reform (Miscellaneous Provisions) Act 1946 (s5) and in addition she alleged that she was entitled to damages against Macquarie for its breaches of s52 of the Trade Practices Act 1974 and s42 of the Fair Trading Act 1987. For its part Macquarie relied solely on the legislation providing for contribution between tort feasors. His Honour rejected Sullivan's claims of breaches of provisions of the two statutes to which I have referred but upheld the claims of both parties under the contribution legislation and ordered that as between themselves each should be held responsible to the extent of 50 per cent. This judgment deals with the appeals brought by both parties against that ruling of his Honour. CONTRIBUTION it is important at the outset to point out that it was not alleged that either Sullivan or Macquarie had caused or contributed to the initial development of O'Shea's cancerous condition. Rather O'Shea charged that Sullivan was negligent in failing to detect and to treat the cancerous condition and that as a consequence of her breaches of duty secondary spreading or metastasis which could, and should, have been avoided developed and led to the very serious illness from which O'Shea was suffering at the time of trial. Macquarie was charged with failing to carry out a proper analysis of a Pap smear and a failure to report accurately on that smear. It was said that its failure also led to the secondary spreading or metastasis. In this context it is important to observe that his Honour found, and there is no challenge to this finding of fact, that no secondary spreading or metastasis had commenced prior to | December 1988 and that if surgical intervention had occurred prior to that date the probability was that O'Shea would not have suffered the metastasis which eventually led to her death. The short history which preceded 1 December 1988 was as follows: In February 1987 O'Shea began consulting Sullivan as her general practitioner. In August 1987 O'Shea consulted a gynaecologist about inter-menstrual bleeding, a condition of which Sullivan was aware. In October 1987 O'Shea consulted Sullivan's assistant who recorded a history of post coital bleeding. In November 1987 O'Shea saw Sullivan and a history of continuing irregular inter-menstrual bleeding was recorded. A diagnosis of break-through bleeding was made. Neither at that time nor on any occasion prior to December 1988 was O'Shea informed of the significance of post coital bleeding nor was she advised to return immediately to see Sullivan in the event that that bleeding continued or re-appeared. In July 1988 O'Shea had more problems with post coital bleeding WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUAR2E PATHOLOGY SERVICES PTY LTD (Clarke JA) as a consequence of which she was forced to decline sexual intercourse. She saw Sullivan on 18 July 1988 and his Honour found that she probably told her doctor about the post coital bleeding in a matter of fact way. On 29 August 1988 O'Shea consulted Sullivan again and the latter noted: "... that in the last three cycles Ms O'Shea had PV bleeding in the third week of the pill (biphasil) cycle, that the prior cycles were OK, that two days ago she had bleeding after intercourse and that on that day Ms O'Shea had mid cycle bleeding having had intercourse the previous evening. There was a small amount of blood that morning." According to his Honour: "The cycles for June, July and August thus raise matters of concern and the bleeding after intercourse was of even greater concern." Sullivan adopted an expectant approach and asked Ms O'Shea to return for "PAP/cervical and high vaginal swabs when the bleeding ceased". On 12 September 1988 Ms O'Shea returned and was examined and a Pap smear was taken, This smear was submitted to Macquarie for a Pap Cytology Test and on the request form Sullivan gave the clinical history as "PV bleeding after intercourse". On approximately 17 September Sullivan received a report from Macquarie which negligently failed to disclose that CIN3 was present. The omission to report the existence of that condition was of great significance insofar as Sullivan said, and her evidence in this respect was accepted, that if she had received a report with that information she would immediately have referred O'Shea to a specialist gynaecologist. It would, however, be wrong to suggest that the pathology report gave O'Shea a 'clean bill of health'. It referred specifically to a mild squamous atypia which was suggestive of an underlying problem. Following Sullivan's receipt of this report she told O' Shea that there was nothing to worry about and O'Shea continued to consult her from time to time. On 12 December 1988, however, she consulted Dr SH Catchlove for a second opinion on her complaint of bleeding after sexual intercourse and it was her visit to this doctor which led to treatment early in 1989. Unfortunately this treatment was carried out too late to enable O'Shea to survive. Sullivan contended that in these circumstances a finding that she was 50 per cent responsible was wrong and she raised a neat point. She accepted that she had been negligent in failing to refer O'Shea to a specialist on 29 August 1988 but said that if Macquarie had not been negligent in the provision of the report of the Pap smear her negligence would have been of no moment whatsoever. The reason underlying the submission was that if she had been given a correct report she would immediately have referred O' Shea to a specialist who, according to his Honour, would probably have submitted O'Shea to operative treatment prior to I December 1988. If that had been done there is no doubt on his Honour's findings that there was a probability that O'Shea would have survived. In summary she asserted that her negligence only became causative of O'Shea's damage because of the later negligence of Macquarie. If Macquarie had not been negligent then O'Shea would not have suffered the damage. For this reason Macquarie should have been ordered to indemnify her or, at least, ordered to contribute to a much greater extent than 50 per cent. Macquarie also contended that his Honour had erred in apportioning contribution. Its argument focused on the different roles played by Sullivan and Macquarie in the management of O'Shea's care, emphasising the fact that its sole negligent act related to the Pap smear which, according to the argument, was known to be an unreliable diagnostic tool. In contradistinction, so the argument ran, O'Shea was under the care of Sullivan for a lengthy period and during this 22 UNREPORTED JUDGMENTS time Sullivan failed on a number of occasions to provide the standard of care which the duty she had undertaken required. There were, in short, two arms to the argument. First, the contention that the Pap smear was, or should have been, of limited relevance and, secondly, the fact that Sullivan had breached her duty of care on many occasions over a lengthy period. In developing the argument Mr Higgs, counsel for Macquarie, pointed out that while cervical cancer was a rare condition in a 24 year old woman post coital bleeding was a very worrying condition which needed to be treated with considerable care, His Honour accepted a submission in similar terms and referred to "a golden rule" with obvious approval. Evidence concerning this rule was given by Professor Crandon, whom his Honour accepted, and the trial judge referred to that rule on at least two occasions describing it in somewhat different terms. On page 18 of his judgment he proffered the following description of the tule: "post coital bleeding ought to be met with immediate gynaecological referral". On page 23 of the judgment he said that Professor Crandon referred to the golden rule that "abnormal bleeding is due to cancer until proven otherwise". Given that post coital bleeding is, and is regarded by medical experts as, abnormal it can readily be understood that once that condition is present a general practitioner is required to be on guard and should immediately refer the patient for specialist gynaecological examination. This, in any event, was the view expressed by his Honour in reaching two conclusions. First, that Sullivan was negligent in failing to impress upon O' Shea the fact that post coital bleeding was abnormal and constituted a symptom of considerable significance. According to the trial judge Sullivan ought to have warned Miss O'Shea that if the post coital bleeding continued following the consultation in October 1987 it was critically important that she return to see the doctor and inform her of that important fact. It would seem clear that Sullivan did not attribute the significance to that condition which the specialist witnesses all thought it had and for this reason failed to give Miss O'Shea the relevant advice and to direct specific questions to her to determine whether the post coital bleeding had continued. Those specialists thought that Sullivan ought to have treated the condition as of greater significance than she obviously did and ought to have warned Miss O'Shea to return to her if the condition continued. The other conclusion based on the golden rule was that Sullivan ought to have referred O'Shea for specialist consultation upon receiving a history of post coital bleeding well before 29 August 1988 but certainly no later than that date. Her failure to do so constituted, in the trial judge's opinion, negligence. Insofar as Sullivan sought to place weight on Pap smears she was, according to the view of Professor Crandon and other experts accepted by his Honour, misguided. According to Professor Crandon it was "well known that with Pap smears there was a false negative rate, The false negative rates from laboratories can in some circumstances be as high as 20 per cent". The trial judge noted this evidence and continued: "He (Professor Crandon) said that the more advanced the lesion is, the more likely you are to get a false negative report. Once the patient develops microinvasion by cancer or frank invasion there is more likely to be an unreliable smear.... Pap smears are not a diagnostic tool but a screening test. There is the further problem of the Pap smear being wrongly or carelessly assessed. Once the symptoms exist the patient should be referred for proper assessment and the general practitioner should not wait for the Pap smear test result." WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUAR#8 PATHOLOGY SERVICES PTY LTD (Clarke JA) In the course of his judgment his Honour referred to the following evidence: "Q. Why wasn't it reasonable conduct by a general practitioner in August/September, to wait, given the findings then? A. If you look at the reliability of Pap smears, and we all accept there is a false negative rate, that false negative rate varies depending on the severity of the lesion, so the more advanced the lesion is, the more likely you are to get a false negative report. They are most reliable with pre-invasive lesions CIN. Once you develop microinvasion and then eventual invasion, you are more likely to have an unreliable smear for reasons such as you may have bleeding from the tumour which obscures the malignant cells on the smear. The body does mount an inflammatory response to the presence of an invading tumour and _ those inflammatory cells on the smear may also cloud its interpretation. You get an exudate over the surface of the tumour when it has become an invading lesion and is clinically obvious and that exudate may interfere with picking up cancer cells off the surface of the tumour. If you have got somebody who already has a symptomatic lesion, and I believe that she had a symptomatic lesion when seen in September and she had a false - if we assume it was a false negative, it was a false negative and we now know the reason why because it was missed, if you see her again in three months and repeat the smear you leave yourself open to yet another false negative smear. You can certainly end up in statistical arguments on the likelihood of getting two false negative smears in a row, but the correct management, and this is why the recommendation is that Pap smears are not a diagnostic tool is for just this reason, once you have got symptoms the patients should be referred for proper assessment." The trial judge's acceptance of this evidence was not, and could not be, challenged on the appeal. Nor is the conclusion that the judge drew from it, that Sullivan was negligent in relying upon a test which was not a proper diagnostic tool and in failing to take the proper action, that is, to refer the patient to a specialist. For these reasons Macquarie argued that Sullivan's culpability was of a far greater order than that of Macquarie which, in any event, did not give Miss O'Shea a clean bill of health but referred to a condition which was atypical. The smear analysis, according to Macquarie's argument, should have put Sullivan on notice and led her to take immediate action. Whether this final argument is correct or not it is apparent that the standard of care administered by Sullivan over a reasonably lengthy period was deficient and that it was not simply her failure to refer the patient to a specialist on 29 August which rendered her liable to a verdict but her continuing failure to conform with the appropriate standard during the earlier part of 1988, in failing to warn and properly to question the patient, as well as her failure on and after 29 August. Macquarie summed up its argument by saying that it did not really matter whether the court accepted Sullivan's evidence, as it did, that if she had received a positive smear in September she would then have referred the patient to a specialist for his Honour had held (and this was not challenged) that Sullivan's negligence was a causal factor in the development of the condition for which Miss O'Shea recovered damages. Accordingly, once it was accepted, as it must be, that both parties were guilty of negligence contributing to the relevant damage there was no reason to accord significant weight to the factor relied upon by Sullivan for it could equally be argued that if she had exercised a proper degree of care then the result of the Pap smear would not have been of significance. It supported that argument by reference to the evidence that a 24 UNREPORTED JUDGMENTS negative Pap smear should not have been considered to be of significance in the light of the history given by Miss O'Shea. These arguments, or the substance of them, were expressly considered by Smart J in reaching his conclusion that Sullivan and Macquarie should be held equally liable for the damages payable to Miss O' Shea. It is well established that a trial judge is invested with a very wide discretion in making his apportionment and that he must be allowed much latitude in arriving at a judgment as to what is just and equitable. In these circumstances the onus cast on an appellant who seeks to disturb an apportionment is a high one (see Pennington v Norris (1956) 96 CLR 10, at 15-16). Obviously where one party can point to an error of fact or of law on the part of the trial judge it may not be difficult to argue that his or her determination as to what is just and equitable may be flawed. In the present case, however, neither party pointed to any error made by the judge but argued that, although he had weighed the competing arguments, he had failed to accord sufficient weight to the submissions of Sullivan or Macquarie, as the case may be. In these circumstances each party seeking to disturb the assessment carries the heavy onus of which I have spoken. The starting point for a consideration of the submissions to this Court is, obviously enough, the trial judge's conclusion that the negligence of each party was causative of the damage suffered by Miss O'Shea. For that reason Miss O'Shea recovered a verdict against both of them. In determining, however, whether one or other should be required to contribute a greater amount the court is concerned in general to take account of culpability and causative effect. It is the latter upon which Sullivan places emphasis in arguing that if the Pap smear had been accurate she would have taken the requisite steps and thus avoided the damage. It is culpability upon which Macquarie has founded its argument arguing that Sullivan's negligence extended over a relatively lengthy period and involved a number of failures by her to observe the requisite standard of care. The duties of the court when confronted with the task of apportioning under the legislation were set out by Else-Mitchell J in 1959 in Dare v Dobson (1960 SR (NSW) 474, at 476) in the following terms which are as relevant today as they were then: "But it seems that the task of apportionment requires an examination of the departure by each person from the standards of the reasonable man... The duty of a tribunal called upon to apportion damages, then is to make a just and equitable calculation, comparing the conduct of the persons responsible and between whom the apportionment is sought. The discretion so conferred is a wide one requiring consideration of a 'question not of principle or of positive findings of fact or law but of proportion, of balance and relative emphasis and of weighing different considerations': 'British Fame' v 'MacGregor' per Lloyd Wright 1943 AC 197 at 201, approved in A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ at 101. This does not mean, however, that one must merely formulate or apply some system of 'adding up sins and assessing culpability by a kind of arithmetical process, saying that one side has done three things wrong and the other side has only done one thing wrong." Although those observations were made in the context of contributory negligence they, as do the principles in Pennington, apply equally to a claim for contribution under the relevant legislation. Reference should also be made to the judgment of the High Court in Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492 at 494, where the court observed (again in the context of contributory WAAC QUARIE PATHOLOGY SERVICES PTY LTD v SULLIVAN; SULLIVAN v MACQUAR25 PATHOLOGY SERVICES PTY LTD (Clarke JA) negligence) that the making of an apportionment involved a comparison both of culpability and of the relevant importance of the acts of the parties in causing the damage. To put it another way the court is concerned with considering relative blameworthiness and the relevant causal potency of the negligence of each party. The submissions made by Mr Harrison, counsel for Sullivan, seek, I think, to breathe new life into the carcass of what became known as the 'last opportunity tule'. That rule, which was designed to alleviate hardship to plaintiffs who may have been guilty of some contributory negligence in days when that provided a complete defence to their action, has consistently been regarded by the Courts as irrelevant to the task of apportionment with which I am concerned (see Chapman v Hearse (1961) 106 CLR 112, at 124-125; Teubner v Humble (1963) 108 CLR 491, at 502). His Honour clearly applied the correct principles and I can detect no error in his application of them. Nor do I think that any of the factors advanced in argument by either of the parties should lead me to conclude that there is any reason why this Court should interfere, particularly bearing in mind the limited appellate review of the trial judge's discretion. I would accordingly reject both challenges to the apportionment. TRADE PRACTICES ACT Sullivan argued that the negligent Pap smear report involved misleading or deceptive conduct as that expression is understood in s52(1) of the Trade Practices Act (Commonwealth) 1974. She then submitted that she had suffered loss as a consequences of Macquarie's misleading, or deceptive, conduct and was entitled to recover the amount of that loss pursuant to s82 of the same Act. To my mind there is a lively question whether the Pap Smear report did represent misleading or deceptive conduct on the part of Macquarie but I am prepared to assume, for the purposes of the present appeal, that Sullivan is correct in the submission. The more fundamental question is whether she suffered relevant loss as a result of that conduct. The loss, the subject of the claim, was the amount that she had to pay in damages to Miss O'Shea less the amount of any contribution she received from Macquarie. But that loss was suffered solely as a result of her own negligent conduct which caused damage to Miss O'Shea and did not flow from any perceived breach of s52 of the Trade Practices Act. It is possible that it could be argued that, upon the assumption I have made, she would be entitled to recover as damages from Macquarie the same amount as she recovered by way of contribution, that is, 50 per cent of the judgment, but it is unnecessary to take time on that question for it does not advance her cause one bit. Whatever view one takes of the s52 question Sullivan is not entitled to any greater relief from Macquarie than she secured under the apportionment legislation. NOTICE OF CONTENTION After the hearing had concluded Macquarie delivered written submissions and a draft notice of contention in which it sought to rebuff the claim under s52 of the Trade Practices Act on the ground that it was statute barred. At the time I received this note my judgment was substantially written and as the question is a purely academic one in the circumstances I do not propose to make any observations about it. In particular it is unnecessary to grant leave to Macquarie to file a notice of contention out of time. In my opinion both appeals should be dismissed and each party ordered to bear her and its own costs. Each of the cross-appeals dismissed. 26 UNREPORTED JUDGMENTS Counsel for Cross-appellant/Cross-respondent (Dr S Sullivan): IG Harrison Instructed by: Colin Biggers and Paisley 5 Counsel for Cross-respondent/Cross-appellant (Macquarie Pathology): DJ Higgs Instructed by: Phillip Gengos Counsel for Estate of the late R O'Shea: No appearance 10 Instructed by: Stern and Tanner