HOLLIDAY and ANOR v CURTIN [1997] NSWCA 152

HOLLIDAY and ANOR v CURTIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL JA, BROWNIE and CLARKE AJJA 21 May 1997, 15 August 1997

[1997] NSWCA 152

APPEAL AND NEW TRIAL - interference with trial Judge's findings of fact — credibility of witnesses — whether findings inconsistent with objectively proven facts or glaringly improbable

NEGLIGENCE — particular relationships — doctor and patient — liability — detection of breast cancer — duty of care

MEDICINE — liability for negligence — detection of breast cancer — duty of care

A 32-year-old plaintiff successfully sued a general practitioner and an endocrinologist (the first and third defendants) in negligence. She contended that breast cancer, which she had developed, had not been treated timeously, consequently metastasised into her liver and reduced her expectation of life very greatly.

On appeal, the issue w as whether the trial Judge made errors of fact and law in finding the defendants liable. His Honour was not satisfied that at any material time there was a palpable discrete lump of such a kind that a reasonably careful doctor would have detected it and advised the plaintiff to have it investigated. However, he found that even if there was no palpable discrete lump, such signs as were present should have alerted the doctors to the danger so that they should have advised those investigations.

The plaintiff filed a Notice of Contention in which she sought to maintain the verdict on grounds other than those relied upon by the trial Judge, and a Notice of Cross Appeal in which she asserted that the damages were inadequate and that a costs order had been wrongly made. In the Notice of Contention she challenged the finding of the trial Judge on the existence of a palpable discrete lump.

Held: (1) The finding of the trial Judge on the existence or otherwise of a palpable discrete lump was not inconsistent with objectively proven facts, nor was it glaringly improbable. (2) The evidence did not establish the existence of a persisting abnormality which should reasonably have put the defendants on notice that they should require that the plaintiff have investigations for cancer (or at least advise her to have investigations for cancer). Accordingly, there is no ground for concluding that the defendants were negligent. Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1992-93) 177 CLR 472; Chambers v Jobling (1986) 67 NSWLR | at 20 per Samuels JA; Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR | applied.