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. Clarke AJA Kathryn Ann Curtin (the plaintiff), who was born on 13 November 1964 and was 32 years old at the date of trial, sued two general practitioners, Dr Louise Holliday (the first defendant) and Dr Maree Farley (the second defendant), and an endocrinologist, Dr Phillip Clifton-Bligh (the third defendant). She contended that as a consequence of their negligence, breast cancer, which she had developed, had not been treated timeously, consequently metastasised into her liver and reduced her expectation of life very greatly. 2 UNREPORTED JUDGMENTS Her case was heard by Bell AJ who, on 17 December 1996, found a verdict in the plaintiff's favour against the first and third defendants, that is, Drs Holliday and Clifton-Bligh. His Honour also found a verdict in favour of the second defendant. The first and third defendants (for the sake of convenience I will continue to refer to the plaintiff and the defendants) appealed from this verdict upon the grounds that his Honour made errors of fact and law. The plaintiff in turn filed a Notice of Contention in which she sought to maintain the verdict upon grounds other than those relied upon by his Honour, and a Notice of Cross-Appeal in which she asserted that the damages were inadequate and that a costs order had been wrongly made. None of the parties has challenged his Honour's finding of a verdict in favour of the second defendant and it is accordingly unnecessary to consider the allegations of negligence made against her. The Appeal and Notice of Contention - liability The plaintiff first consulted the second defendant in 1990. She complained of a large number of symptoms, including acne and 'hirsutism'. She was referred by the second defendant to a dermatologist who in turn referred her to the third defendant. She continued to be treated by the second and third defendants until about the middle of 1993 when the first defendant, who had begun to practise in association with the second defendant, appears to have taken over the care of the plaintiff. From that time the plaintiff was examined from time to time by the first and third defendants, although she did see the second defendant on occasion. On a number of her visits to the various doctors she made complaints concerning her breasts and it will, of course, be necessary to return to the detail of those complaints. She last saw the third defendant in October 1994 and the first defendant in January 1996. Later in January 1996 she attended Dr Turner at the Chase Medical Centre, complaining of a lump in her left breast. Dr Turner carried out an examination and found a large and hard lump on the inner aspect of the left breast. This was soon diagnosed as a carcinoma which had metastasised. The plaintiff's case was that she continually complained to the defendants of a lump in her left breast and that they failed to provide proper treatment. The defendants denied that she had continually complained of a lump in her left breast or, indeed, that she had ever complained of a lump in that breast. They said that the plaintiff made many and varied complaints, including complaints of problems in her left breast, but that she had never complained of a lump in her breast and that in their examinations they did not find any indication of a developing carcinoma. At this stage it is convenient to record a statement made by his Honour in the judgment, together with his Honour's definition of the issues: "There is no doubt that the plaintiff has a terminal carcinoma and there is no doubt that that was present for a considerable time before diagnosis. It is probable that, as Professor Tattersall says, it was present for a couple of years. It is also probable that had investigations been performed in 1994 the cancerous - or pre-cancerous - cells would have been discovered. Had they been discovered then successful treatment was probable. The foregoing statements are either common ground or not seriously contested. The evidence in support of each is so strong that it is not necessary to set it out. URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 3 Issues The issue is not whether the cancer or its precursor was present in 1994; it is whether it was present in a form that should have made apparent to the treating doctors the need for further investigation. This issue could be paraphrased as first presented, "whether it was palpable as a discrete lump". A second issue which has become the main issue is whether, 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." His Honour found for the defendants on the first issue, saying that he 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. On the second issue, his Honour found in favour of the plaintiff. In so doing he accepted the thesis of Professor Tattersall that "irrespective of whether there was an indication of cancer, a prudent medical adviser would have carried out investigations and that these would probably have revealed the presence of the cancer that is now killing the plaintiff'. Before defining the thesis in those terms, his Honour set out a passage from the evidence of Professor Tattersall which should be reproduced: "What I am saying is that unilateral breast pain which is not cyclical, associated with tenderness, is something which is not part of normal experience for most women and an explanation for those symptoms is the role of a person consulted about those problems... a prudent practitioner would after the persistence of the symptoms (the absence of them being cyclical)... have said, if asked for the cause,: I don't have a clue, let's do something.' The 'something' would begin with a referral or some other investigation." It was common ground that the investigations which Professor Tattersall regarded as appropriate were a fine needle biopsy or aspiration, a mammogram or an ultrasound. In accepting Professor Tattersall's thesis, the trial judge said he preferred that view to the contrary one put forward by practitioners who disagreed with Professor Tattersall's approach. Their opinion was that unless there were indications of cancer, there was no occasion to carry out investigations to determine whether cancer was present. Although the challenge to the finding on the first issue is made in a Notice of Contention, it is convenient to deal with it first. The plaintiff's evidence was that at about the time of the death of her grandmother in late January 1994, she was conscious of a lump which she could feel and which was painful. She said that the lump was between 1.5 and 2.0 centimetres in size and she later described it as being about a quarter of the size of a squash ball or about the size of a marble. None of the defendants, however, recorded finding a discrete lump in the sense of a firm, dense lump with definite edges. His Honour found that all the defendants were good note takers and that the third defendant was a 'most meticulous note taker'. Having regard to the notes and the evidence of the doctors, his Honour was quite satisfied that neither the second nor the third defendant ever palpated a discrete lump in the sense referred to. His Honour was also of the view that it was highly unlikely that the first defendant would have failed to record a finding that she had made of such a discrete lump. Insofar as there was a direct clash of testimony between the plaintiff on the one hand and the defendants on the other, his Honour, generally speaking, preferred the recollection of the defendants, based as they were on contemporaneous notes. In the light of those findings his Honour considered that what the plaintiff had 4 UNREPORTED JUDGMENTS complained of and what the defendants palpated on each occasion was more accurately described as 'general lumpiness' or 'an area of tender lobularity'. His Honour went on to record that: "°lobularity' per se is not abnormal. It is a condition often found in a female breast. It may be transient and per se it is not suspicious nor per se is it an indicator for further investigation. What the defendants have recorded gives no indication that they found anything suspicious. What they recorded u as what they found." His Honour then went on to record that there was not a palpable discrete lump in the plaintiff's left breast at any material time. The finding by the trial Judge was, as it seems to me, based upon an analysis of the evidence of the witnesses who gave evidence before him. His conclusions must have been based, to some extent at least, upon his assessment of the demeanour of the witnesses and, for this reason, a challenge to the finding is difficult to sustain. Since Abalos v Australian Postal Commission (1990) 171 CLR 167 there have been a number of cases in which the High Court has reiterated the principle that a finding of fact based upon the assessment of witnesses may only be reversed by an appeal court in particular circumstances, such as where the finding is inconsistent with established facts or an overwhelming body of evidence or was glaringly improbable: 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 1. The finding in this case is not inconsistent with objectively proven facts, nor is it glaringly improbable. Nonetheless, Mr Glissan QC, senior counsel for the plaintiff, submits that as the plaintiff complained of lumps in her breast to her mother in early 1994 and her flatmate at about the same time, and as a lump was duly found in January 1996, which must have been growing for some time, his Honour's findings were inconsistent with objective facts. Mr Glissan added that having regard to his Honour's finding that the doctors did find an area of tender lobularity or general lumpiness, the plaintiff's expressions of concern to the doctors, albeit not given great emphasis, and Professor Tattersall's evidence that the lump ultimately found had not been growing rapidly, the only reasonable conclusion was that in 1994 the first and third defendants had seen and felt a lump which should have put them on enquiry. These submissions have considerable force but I am unable to agree that they entitle this Court to reverse the findings of fact based upon the assessment of the witnesses. His Honour's conclusions were based to a considerable degree upon an analysis of the contemporaneous notes written by the defendants. Those notes, to which I will be referring in detail in considering the next issue, do not support the existence of a discrete lump, nor do they support the conclusion for which the plaintiff argues. Some reliance was placed upon the interpretation of the notes proffered by expert witnesses, but whatever value these interpretations may have, they do not provide a basis for setting aside his Honour's acceptance of the recollections of the defendants. In these circumstances I am unable to come to the conclusion that his Honour was wrong in his decision on the first issue. The first and third defendants' submissions in support of the appeal were summarised as follows: 1. There is no obligation to refer for further investigation - (a) if there are no clinical indicators (signs or symptoms) of cancer eg a clinically palpable, discrete breast lump, or URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 5 (b) if there is no persistent abnormality ("the Professor Tattersall thesis"). 2. As to 1(b) above. (a) there was no persistent abnormality in fact; or (b) if there was, it did not indicate referral for further investigation as it was not indicative of cancer. It will be seen that the first and third defendants propound two separate arguments, the first involving the rejection of what has been described as "the Professor Tattersall thesis" and the second based on an acceptance of that thesis. In oral argument most time was spent on the second proposition and for this reason it is convenient that I deal with it first. The essence of the case made by the defendants was that a thorough examination of the evidence would not reveal that the plaintiff suffered from an abnormality, much less a persistent abnormality, which might lead a reasonably prudent doctor to refer the plaintiff for investigations designed to establish whether or not the plaintiff had a growing carcinoma. In order to make good this submission, Mr Harrison SC, for the first and third defendants, took the Court painstakingly through the notes of both those defendants. Although detailed reference to the doctors' notes involves a degree of repetitive statement, and perhaps some tedium, it is, in my opinion, necessary to carry out that exercise in an assessment of the submissions put by Mr Harrison. For the sake of economy I will limit my references as far as possible, notwithstanding that I recognise that the greater the detail of the notes, the better the picture that is painted. I will start with the third defendant's notes commencing on 5 March 1991. That day seems to have been the occasion of the third defendant's first examination of the plaintiff. For this reason the notes are lengthy. Her main complaints at that time appear to have been of acne and excess hair growth, the latter of which the doctor attributed to the level of testosterone. In a letter addressed to the dermatologist dated 20 March 1991, the third defendant commented that the plaintiff's breasts were normal, and this is consistent with his notes in which the phrase "no lumps appear" and a tick (to indicate no abnormality) is placed beside "breasts". Further examinations took place on 2 April, 28 May, 27 August and 26 November 1991, and in none of those examinations was there any reference to any problem with the plaintiff's breasts. Clearly enough the problem for which the third defendant was seeing the plaintiff were those the subject of her initial complaints, and no complaints were made about the condition of the plaintiff's breasts. On 3 March 1992 the third defendant again took very detailed notes and reported to the dermatologist that there had been a marked reduction in chest hair, abdominal hair and leg hair and that the plaintiff's acne had also improved with her present medication. She did complain that she had marked mood swings since she began a course of Aldactone and the doctor had suggested a change of medication. He went on that "the blood pressure was 100/60. Examination of the heart. neck, breasts, lungs and abdomen were normal." On 12 May 1992 he saw her again and noted that she was taking three courses of Androcur and that during the first week on Androcur her breasts were sore. There was again reference to excess hair growth and acne. Pausing there, Mr Harrison submitted that the soreness of the plaintiffs breasts was readily explicable in the light of the endocrinological treatment. At examination on 11 August 1992 there is no mention of breasts, nor was there a complaint of any problem with the plaintiff's breasts on 11 February 1993 when the third defendant reported after a comprehensive examination that the heart, 6 UNREPORTED JUDGMENTS breasts, neck, lungs and abdomen were normal. On 10 June 1993 there was no complaint noted concerning the breasts, but on 15 September 1993 the following note appears: "Breasts sl. discharge first month of Marvelon" (a contraceptive prescription). It should be noted that the third defendant was still treating the plaintiff, as his letter of 1 October 1993 points out, for the problems of hirsutism and acne. He saw her again on 27 October, when he recorded "left breast has been sore with Marvelon, still tender sometimes very painful". The doctor has drawn a sketch of the left breast indicating an area of "tender lobularity" beneath the nipple. He observed that she used Evening Primrose Oil and "only had breast pain with Marvelon. Much worse with first month." It should of course be observed that all of the examinations with which I have so far dealt occurred prior to the plaintiffs own complaints of a lump in her breast. On 22 December 1993 the third defendant examined the plaintiffs breasts and found them normal. In his notes relating to a consultation on 3 March 1994, about the time the plaintiff said that she started to notice a lump in her breast, the doctor drew a sketch similar to the earlier one described and below it wrote: "soft tender lobularity. No discrete lump". In a letter to the first defendant, reporting on the examination, the doctor stated that the plaintiff was taking Evening Primrose Oil and that this had lessened the tenderness in her left breast. A similar observation appears in the notes relating to an examination on 8 June 1994, in which the doctor observed that an examination of breasts revealed only that the area below the left nipple was slightly lobular. In his letter reporting on that examination, the third defendant said "there was slight lobular [sic] tenderness in the lower aspect of the left breast, noted before" after having reported on an examination of the breasts as normal. (In his oral evidence the third defendant said that the reference to "lobular tenderness" should have been a reference to "lobularity".) On 27 July 1994 when the third defendant saw the plaintiff again there is no note concerning either of the breasts although there is reference to premenstrual tension. The third defendant saw the plaintiff for the last time on 19 October 1994 when he reported: "She said her acne was not well controlled with Diane and she had returned to taking Triphasil and says that 'acne is 50% better'. She continues also with Androcur 50 mg twice a day for the first eight days of each cycle. She has occasional pre-menstrual tension. Her level of energy is good and overall she says she feels well. The blood pressure was 120/60. There was slight acne on her face when I examined her. Examination of the heart, neck, lungs and abdomen were normal. I have not made any change in her medication and she will be coming to see you again." Thave referred to all of the third defendant's notes concerning his consultations with and examination of the plaintiff. I say that upon the assurance of Mr Harrison, which was not gainsaid by Mr Glissan. I will defer consideration of the critical question whether the third defendant (as a specialist endocrinologist) should, in the light of the complaints made to him and his own investigations, have referred the plaintiff for investigations to determine whether she was suffering from a carcinoma until I have made reference to the first defendant's notes, although it must be understood that it was not suggested that the third defendant had access to these. URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 7 The first defendant saw the plaintiff for the first time on 22 July 1993 but there is nothing in her notes of that date indicating any complaint about her breasts. Again on 4 September and 16 September 1993 there is no reference to the breasts. On the latter occasion the plaintiff is noted to have complained of night sweats for two weeks and a tender abdomen. On 18 January 1994, the only possibly relevant entry is "Evening Primrose Oil". On 6 June 1994 the plaintiff saw the first defendant again, about four weeks after her grandmother had died. She said that she later "cracked up" and the notes go on to state "treatment for stomach colic/rash on cheek/stress". The doctor had drawn a sketch to indicate both breasts and shaded in an area beneath the left nipple. His Honour deals with that examination in his judgment, saying: "The first defendant says that she did conduct a breast check on that day following a practice which she has since modified slightly in that she takes even more care that she did at that time. On this occasion she found what she described in evidence as 'an area of increased lumpiness', which [she] thought was consistent with normal breast tissue below the left nipple. She said (transcript 382) '... I felt that her left breast was also normal. The area was slightly more lumpy. I thought it was consistent with being normal.....'. She recalls no discussion with the plaintiff. However the plaintiff says that she raised the matter with Dr Holliday telling her that she was concerned about the lump because it was hurting her and 'staying there'. The plaintiff claims that Dr Holliday informed her that 'it was common for girls in [her] age to have hormone imbalance and it was probably just fibrous and not to worry about it.' She adds that Dr Holliday said that 'if I was fifty I would be going to get a mammogram as fast as my legs could carry me but I was only twenty-nine.' This was denied by Dr Holliday but subsequently the denial was retracted. I am satisfied that the remark was made. Two days later she again saw Dr Clifton-Bligh and says that she invited his attention to the lump. Dr Clifton-Bligh denies that it was relayed to him by the plaintiff but she says that she quoted Dr Holliday to him and that his response was to ask for Dr Holliday's telephone number." I have already referred to the third defendant's note concerning his examination at that time which, I repeat, records that "Evening Primrose Oil 2 at night 10 days before period breast soreness is less" and includes a diagram of a breast with an arrow pointing to an area described as "slightly lobular". The third defendant also observed that he considered that the breasts were normal, an opinion which he passed on to the first defendant in his letter of 17 June 1994 to which I have previously made reference. On 5 September 1994 the plaintiff saw the first defendant again, apparently because her periods had stopped, possibly as a hormonal reaction to the drugs she was taking. There is no note of any problem with the plaintiff's breasts. Nor was there any abnormality noted. The plaintiff saw the first defendant on a number of occasions between that time and 13 February 1995 but on no occasion was any complaint made concerning the plaintiffs breasts. On 22 February 1995, however, the first defendant did carry out an examination of the plaintiff's breasts and drew sketches of both of them. On the right breast a point is indicated with the words "firm definite mass" (a note which it is common ground is not relevant to the present appeal) and in the left breast there are dots shown with the words 8 UNREPORTED JUDGMENTS "generally lump". His Honour accepted that the first defendant left off the final "y" and meant to say "generally lumpy". In his judgment his Honour records: "This investigation was carried out as a routine accompaniment to the taking of a Pap smear. In evidence she [the first defendant] described the diagram as showing 'a scattering of dots which are not indicative of any location. It is more an idea of general scattering..... of areas of lumpiness or irregular soft thickenings which is consistent with normal breast tissue." His Honour also noted that the plaintiff said that the first defendant told her that "that is just lumpiness still, don't worry about it. She was therefore reassured and although she continued seeing the first defendant during 1995 there were no further breast examinations. Nor, apparently, any complaints about the left breast. The plaintiffs last consultation with the first defendant took place on 5 January 1996 and the notes of that examination merely state: "Has not had a period. Skin sl acne - taking Androcur 50mg II 8/7 + Diane." The plaintiff claims that she told the first defendant that she was still concerned about the lump but the first defendant denies this allegation and, having regard to his Honour's finding as the reliability of the notes, this Court must approach the case upon the basis that Dr Holliday is to be accepted on that issue. In his judgment his Honour had this to say about the lumps issue: "T have no doubt that the plaintiff was generally troubled for at least the two years in question by 'lumps in her breast'. I believe that she did draw these to the attention of the defendants and that they examined the area she pointed to. I accept that she believed that amongst the lumps was a hard area which qualified for the description of a "discrete lump'. However, I think it probable that what she told them of and what they palpated on each occasion was more accurately described as 'general lumpiness' or 'an area of tender lobularity'. I am not satisfied that the plaintiff expressed her concern in a manner which made any of the defendants recognise its intensity. Her passing references and tentative inquiries may well not have seemed sufficiently significant to justify a record being kept." This statement was made during the consideration of the first issue, that is whether there was a discrete lump which was palpable and which should put the treating doctors on notice of the need for further examination. His Honour's final words on that issue were that he 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. In considering the next issue which, assuming a negative answer to the first, raised the question whether there were signs present which should have alerted the doctors to the danger, his Honour set out portions of the expressed opinions of Professor Tattersall upon which he heavily relied. The professor based his opinions upon his interpretation of the notes kept by the first, second and third defendants, concluding that they demonstrated the presence of a persistent abnormality which was of such a nature as to require a reasonably prudent medical practitioner to refer the plaintiff for further investigation. The nature of the persisting abnormality of which Professor Tattersall spoke is not entirely clear but it would seem from the statement which his Honour set out and which I have already quoted (on p4) that that abnormality was breast pain in only one breast, which pain was not cyclical, but was associated with tenderness. Other evidence given by Professor Tattersall, to which his Honour referred, supports the view that the existence of a tender area of lobularity in the plaintiff's left breast was itself an abnormality. URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 9 In discussing this aspect of the case Professor Tattersall used the word "asymmetrical" but as his Honour pointed out the professor used that word as a synonym for unilateral. In broad terms it would seem to me that the better view (and one which I think his Honour accepted) is that the presence of an area of lobularity in the plaintiff's left breast (but not the right) which persisted over a lengthy period when associated with persisting pain and tenderness in the left (but not the right) breast constituted an abnormality of a nature which should have led a reasonably prudent doctor to refer the plaintiff for further investigation. It was, as I apprehend the case, those two factors, in which Professor Tattersall's view constituted the persisting abnormality, or persisting abnormalities. The trial Judge was impressed with this approach, finding it preferable to the view of some witnesses that it was unnecessary to refer a patient for investigations to determine whether cancer existed in the absence of any indications suggesting that the plaintiff may be suffering from cancer. In the course of expressing his acceptance of that thesis, his Honour made a number of statements which the first and third defendants call into question. For instance, his Honour said that there were no opposing experts who met Professor Tattersall on his own ground. They (that is the opposing experts), according to his Honour, were looking for indications of cancer and, having found none, concluded there was no need to refer the plaintiff for further investigation. His Honour also said that no evidence was called by any of the defendants in response to Professor Tattersall's latest report or his oral evidence on the point. The significance of the reference to the latest report is that it was only in that report that he put forward for the first time the theory that there were persisting abnormalities which, although they did not indicate the existence or possible existence of cancer, required that the defendants as prudent medical practitioners refer the plaintiff for further examination. The first and third defendants argued, with considerable force, that while other experts did propound the view that in the absence of the existence of a discrete lump that was palpable there was no occasion to refer the patient for further investigation the defendants' own experts, in reports which were tendered (and in respect of which the experts were not cross examined), went further and denied the existence of any abnormality calling for further investigation, a viewpoint completely at odds with the Tattersall thesis. It was accordingly submitted that his Honour had either overlooked these reports or had in some other way fallen into error. The first report relied upon was that of Dr Greenaway, a specialist physician, dated 18 June 1996. That was written before Professor Tattersall's latest report and to the extent that his Honour intended to convey the notion that no further evidence had been sought by the defendants after the submission of that report his Honour was correct. Nonetheless the substance of the report is, in my opinion, quite inconsistent with Professor Tattersall's viewpoint. The report is quite lengthy and the following extracts convey sufficient of it to answer a suggestion that the professor's thesis went unanswered: "In your statement of assumed facts, I note that Dr Clifton-Bligh's comment about lobularity refers to a normal consistency of breast tissue. The abnormality relates to tenderness, hence the point that I have made in interpreting this. 10 UNREPORTED JUDGMENTS The point at issue is whether the fact of tenderness, without clinically detectable abnormal tissue being felt by way of a lump, should raise doubts in the clinician's mind about serious underlying pathology. Tender areas of the breast are very common, for a variety of reasons, but in particular hormonal influences play a part in causing fluctuations in developmental function of the breast, with variation during phases of the normal menstrual cycle, and in the absence of conception a regression of such changes that have occurred in the latter part of the menstrual cycle. At times this smooth fluctuation in development and function is impaired in local areas of breast tissue, and some fullness of the local area of true breast tissue may occur which can be tender, as would appear to have been the case here. Various names have been applied to this, perhaps the most general term used is hormonal mastopathy. My interpretation of the notes is that this occurred to a varying degree during '93 and '94, and if Dr Clifton-Bligh felt that on palpation of the area of the breast which was tender he detected no abnormal swelling, that further investigation by way of mammography or surgical consultation was not necessary. With regard to your fourth point, namely the normal texture of breast tissue in a woman in her late twenties, this will vary to some extent, depending on whether there have been pregnancies, and whether there has been any significant degree of hormonal mastopathy. The latter would be described as an abnormal situation if you like, but it is common in minor degrees, so that it is really a grey area as to what is normal and what is abnormal in this regard. But in general the texture of the breast is rather soft, certainly as compared for example with subcutaneous tissue of normal proportions over the limbs, and there more often than not is a slightly uneven sensation, as though palpating a collection of grapes underneath cotton wool kept in place by a thin layer of material [described by his Honour as the only description of lobularity that he found evocative]. This may perhaps be a rather extravagant description, but I am attempting to indicate the sensation is not absolutely smooth, and this is brought about by the structure of the breast in which the various acini, the secreting components of breast tissue are arranged in a series of clusters around a duct, surrounding this being fatty tissue, kept in place by fibrous septa that constitute the scaffolding of the breast. tees I would simply repeat that at the time of the last reference to the breast by Dr Clifton-Bligh, in June of 1994, the clinical condition fundamentally, as described in the notes, was hormonal mastopathy." The other report to which senior counsel for the first and third defendants referred the Court was that of a general practitioner, Dr Norman Walsh, but I am not sure that it could be said that his views meet those of Professor Tattersall head on. Dr Walsh does say that: "A hormonal breast disorder variously known as benign hormonal mastopathy, fibrocystic disease or fibroadenosis is a common condition in younger women causing diffuse thickening and lumpiness in one or both breasts often associated with tenderness...... Because benign hormonal mastopathy is such a common disorder, beginning in the teen years, it is usual for general practitioners to manage such patients themselves and only to refer the patient if a discrete dominant lump has been present for one month without resolution." Although these observations do not answer the "Tattersall thesis" they are pertinent particularly having regard to the importance placed on the unilateral nature of the tenderness and the lobularity by Professor Tattersall. URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 11 In these circumstances. although there may be some force in the criticisms by the first and third defendants of his Honour's statement that Professor Tattersall's thesis was not answered in terms, I am not prepared to conclude that if there was an error it was of such a nature that the judgment should be set aside. But, of course, the first and third defendants did not rely solely on that point. The main substance of their argument was that the evidence dealing with the plaintiffs' complaints from time to time did not support the finding of persistent abnormality, particularly as his Honour had quite properly held that lobularity per se was not abnormal. (Indeed his Honour described that conclusion as being "common ground"). It was in developing that submission that senior counsel referred to the detail of the first and third defendants' notes. Unfortunately his Honour did not analyse those entries in the context of his discussion of the issue with which I am now dealing. Nor did his Honour consider separately the case against each of the defendants. This is not unimportant for, while the first and third defendants each found an area of texture in the plaintiffs left breast that was different from her other breast texture, a finding of negligence could only follow from the conclusion that both doctors had been confronted with a relevant persisting abnormality. In my opinion it was necessary for his Honour clearly to identify the persisting abnormality which demonstrated a need for referral and, then, to analyse what complaints were made to each doctor from time to time and what each of them found on examination at relevant times in order to decide whether one or other, or both, had breached his or her duty of care. No doubt this was a difficult task but, in the absence of such an analysis, it is difficult to identify when each doctor was presented with a situation which required each of them, as reasonably prudent doctors, to refer the plaintiff for further examination. These matters have troubled me for it is not desirable that the case be returned for a retrial and, on one view, it could be said that there are not sufficient findings for this Court to determine whether one or both the relevant defendants responded inappropriately to the presentation of the plaintiff at given times. On reflection I have concluded his Honour's general acceptance of the doctors' evidence, his finding that each doctor was a good note taker and his reference to the plaintiff making passing references and tentative inquiries regarding the area of lumpiness in the left breast does enable this Court to carry out the necessary analysis in order to determine whether his Honour was correct in his conclusion. In these circumstances it is necessary to inquire whether, first, the third defendant and second the first defendant, ought, as reasonably prudent practitioners, to have referred the plaintiff to other persons for the carrying out of tests designed to elicit whether the plaintiff was suffering from cancer. Although it is true to say that the inquiry is directed towards the persisting abnormalities of which Professor Tattersall spoke, it is critical to understand those matters which Professor Tattersall regarded as abnormalities. In essence there were two factors, as his Honour pointed out, which constituted abnormalities in the professor's eyes. In the first place there was the tenderness in the left breast - on occasions it was soreness. In the second it was the area of lobularity which was recorded by both the first and third defendants in their respective notes. The professor accepted that those two matters. taken either separately or in conjunction, may not of themselves have been of great significance. What made them significant in this case was that the complaints both related to the left breast and indicated an asymmetry which could, or may, 12 UNREPORTED JUDGMENTS not be explained simply as hormonal conditions or as indicating responses to medication. Asymmetry was, in Professor Tattersall's opinion, a significant factor. Even more important was the persistence of both those conditions and herein lies the thrust of the argument which the witness propounded. It found expression in the statement recorded by his Honour and earlier quoted by me (at p4) and in two further pieces of evidence given by the professor. In the first he said: "They would say, 'I don't know what is the cause of this persisting abnormality. If we really want to know what it is it would require further investigation such as mammography, ultrasound and perhaps biopsy, but I think the chance of it being cancer is small'." In the second he returned to the theme of persisting complaints the cause of which was not obvious to the treating doctor. Further, in answer to the argument that lobularity was not an indication of any abnormality, nor was it an abnormality in itself, the professor emphasised the importance of its continued existence in only one breast, suggesting that this was sufficiently uncommon to call for investigation. His constant approach was that the persistence of the lobularity and the tenderness raised questions as to the nature of the treatment being given and the possibility that there may be another underlying problem which required investigation. A reasonably prudent doctor would, in the witness' opinion, have recognised the possibility of the existence of another problem and required those investigations. He explained it thus: "What I am saying is that unilateral breast pain which is not cyclical, associated with tenderness, is something which is not part of normal experience for most women and an explanation for those symptoms is the role of a person consulted about those problems. Q. So if you are faced with that situation as described by you, you say that because it is beyond their power to explain it they should at any rate have referred it to somebody who might have been able to do so? A. I would say that a prudent practitioner would, after the persistence of the symptoms, the absence of them being cyclical - and if I am asked to disregard all the diagrams - then I would say that a prudent practitioner or a demanding patient, either, might have said, 'Well done, what's the cause of this?' and I would have thought that a prudent practitioner would say 'I don't have a clue, let's do something'." The answer propounded by the first and third defendants at the trial and in this Court sought to deal with each of the matters relied upon by the trial Judge. Tenderness, or soreness was no indication of the possibility of cancer and this was, it was said, common ground. In support of this submission reference was made to the evidence of Professor Harris, a professor of general practice, that breast soreness or breast tenderness does not tell you whether or not there is breast cancer. It is not, accordingly to Professor Harris, a useful diagnostic aid in deciding whether someone has breast cancer or not Counsel relied, in particular, on the next expression of opinion by Professor Harris to the effect that breast tenderness or breast soreness, in the absence of a suspicious palpable lump, is not an indication for referral for investigation. I am not entirely sure that this was common ground. Nevertheless as it seems to me, the weight of evidence is so strongly in favour of that viewpoint that it must be accepted. Turning to the significance of the lobularity, senior counsel for the first and third defendants pointed out that Professor Tattersall was not familiar with that phrase and was expressing opinions based simply on what he saw in the notes. He submitted that, where both the first and third defendants had described the URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 13 lobularity as normal breast tissue, an opinion which was supported by Dr Greenaway and other evidence, it was quite inappropriate to describe this condition as an abnormality. This conclusion was reinforced, according to the argument, by definitions tendered by the third defendant which were never seriously challenged during the case. They were: "Lobular - Normal uneven texture of breast associated with the variable contribution of fat tissue, fibrous tissue and gland tissue to different parts of the breast. Lobularity - Relates to a portion of the breast which is lobular. The palpable area of lobularity may vary because of the varying hormonal factors. Slightly Lobular - An area of lobularity which is just detectable on palpation. Tender Lobularity - An area of lobularity which is tender on palpation. This is due to hormonal stimulation of glandular tissue within the defined lobular area of the breast." In answer to the claim that asymmetry, or the unilateral nature of the complaints, was a matter of significance, the first and third defendants pointed to a body of evidence in support of the proposition that hormonal conditions could lead to both bilateral and unilateral consequences and the inability of Professor Tattersall, when confronted with this proposition, to answer it. Great reliance was placed on the following evidence: a. However, when one commences new treatments of various hormonal types and those treatments continue, it would be my experience. although not large, that sometimes when these hormones are given pain in the breast is persistent and I would usually feel that such symptoms, if complained of by a patient, that the symptoms would be bilateral. Q. But they could be unilateral? A. I don't know. Ask an endocrinologist." Quite correct submitted senior counsel for the first and third defendants. This was a matter for an endocrinologist. The third defendant was an endocrinologist and his view did not support Professor Tattersall's claim. Professor Tattersall placed much reliance on the persisting nature of what he perceived to be the abnormalities. The first and third defendants denied that the conditions were persisting but added that, to the extent that the conditions did persist, that persistence was explicable as flowing from the hormonal influences and treatment given to the plaintiff. In overall summary, senior counsel submitted that the thrust of Professor Tattersall's view was that as the treating doctors did not know what was causing the persisting abnormalities they ought to have sought other opinions. In this case far from the treating doctors being puzzled as to the continued complaints they were satisfied that they resulted from the hormonal condition earlier described, with the possible implication of the treatments prescribed in respect of the various complaints made by the plaintiff. His Honour did not carry out a detailed analysis of the specific arguments that Ihave just described. This is probably because the case was argued in a different way before him. Notwithstanding it is my opinion that there is considerable force in the submissions put by senior counsel for the first and third defendants and it is necessary to return to the evidence which was accepted by his Honour, that is of the doctors' notes, in order to determine whether there were persisting abnormalities which ought reasonably to have required the first and third defendants to send the plaintiff for further examination. Before doing that I should mention two things. First, although the plaintiff complained of the existence of a lump in her left breast only from early 1994, and Professor Tattersall spoke of a period of persisting abnormalities during the first 14 UNREPORTED JUDGMENTS six months of that year, the third defendant's notes relating to complaints about a sore breast, or sore breasts, started much earlier and reference should be made to the position from the time that those complaints were first made. Secondly, in considering the third defendant's response it is important to examine whether he was, or appeared to have been, in doubt as to the cause of the breast symptoms. The third defendant first noted a complaint by the plaintiff that her breasts were sore on 12 May 1992. The note read - "first week of Androcur breasts were sore". No further complaints were made by the plaintiff in relation to her breasts until 15 September 1993 when she said there was a slight discharge from her breasts with the first month of Marvelon. This was a birth control pill ani according to the evidence, discharges of the type complained of can occur with any such pill. On 27 October 1993 the third defendant first noticed an area of tender lobularity in the plaintiffs left breast. At that time the plaintiff complained that her left breast had been sore with Marvelon, it was still tender and the symptoms were sometimes very painful. The third defendant said that he examined the plaintiff's left breast and there was nothing resembling a lump in it, although he did palpate the lobular area. The next examination was on 27 December 1993 when the plaintiff made no complaint in respect of either of her breasts. The third defendant did however examine her breasts and indicated in his notes that no abnormality was found. In oral evidence he said there was no lobularity present on that occasion. I come now to the period which Professor Tattersall identified as the area when there were persisting symptoms. The first examination was carried out on 3 March 1994. At this time the plaintiff said she was taking Evening Primrose Oil, increased to two. She also said that the tenderness in her left breast was less. The note records that there was "soft tender lobularity - no discrete lump". (The latter expression was said by the doctor to indicate there was no lump at all.) On 8 June 1994 the plaintiff was next examined by the third defendant and said that "Evening Primrose Oil, two at night 10 days before period, breasts soreness is less." The doctor made a tick in his notes opposite the word "breasts" to indicate no abnormality and drew a sketch of the left breast with the words "slightly lobular" beside this sketch. On the two further occasions that the third defendant examined the plaintiff (27 July 1994 and 19 October 1994) she made a number of complaints relating to her menstrual cycle, for example missed periods and pre-menstrual tension, but did not make any complaint about her breasts. Nor were they examined by the third defendant. I reiterate that the persisting abnormalities upon which Professor Tattersall based his opinion were the continuing complaints of tenderness, the findings of lobularity, and the asymmetrical nature of both. Leaving aside for the moment the fact that on both 3 March and 8 June the plaintiff said that the "tenderness" (3 March) and "soreness" (8 June) was less the third defendant gave evidence quite inconsistent with the notion that there were persisting abnormalities the continued existence of which puzzled him and which led him to doubt that the soreness or tenderness of which the plaintiff complained was not fully explained by hormonal reactions or the actions of the various medications. It was not a case, in my opinion, in which it would have been at all appropriate for the third defendant to have said to the plaintiff "I do not know what is causing these conditions, we must search elsewhere". As it seems to me the factual basis for the opinions expressed by Professor Tattersall simply does not exist. Understandably the professor read the third defendant's notes, and in URJ HOLLIDAY and ANOR v CURTIN (Clarke AJA) 15 particular the sketches. as indicating that the lobularity was an abnormality - a conclusion denied not only by the third defendant but by the weight of evidence in the case. He also placed a great emphasis on asymmetry and his view that tenderness or soreness or lobularity in one breast only was itself an abnormality. This opinion is again not supported by the evidence and as he himself said it was more in the realm of an endocrinologist. What should not be overlooked is that the plaintiff was complaining of many things on the occasions that she saw the third defendant, apart from the initial complaints of acne and hirsutism, and that complaints of breast pain or soreness did not loom large. When the third defendant was unable to discover any abnormality on palpation of the breasts and when he regarded the complaints as explicable on hormonal grounds it is not surprising that he did not refer the plaintiff for examinations in order to detect whether cancer existed. His Honour approached the second issue in the case upon the basis of a finding adverse to the plaintiff on the first question, which was whether cancer was present in 1994 in a form that should have made apparent to the treating doctors the need for further examination. That finding must stand for the reasons I have given. In these circumstances I am not satisfied that the evidence established the existence of a persisting abnormality which should reasonably have put the third defendant on notice that he 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 third defendant was negligent. In reaching this conclusion I have not overlooked the fact that tenderness or soreness may properly be regarded as abnormalities and that an area of lobularity was found at the same time. Nor have I overlooked the continued existence of these conditions over a period of a few months, albeit that the soreness and tenderness was improving. The reason why they did not call for the third defendant to refer the plaintiff for an examination designed to determine whether cancer was present is that, although they may fall within the description abnormal, they were not unusual conditions to be experienced by a young woman, they were not indications of cancer, they were readily explicable on hormonal grounds or, possibly, as a reaction to medication and the treating specialist reasonably regarded the lobularity as normal and the symptoms of soreness and tenderness as consistent with her hormonal problems and medication. The case is a long way from one in which the doctor was left scratching his head and saying he did not know the cause of the symptoms and falls outside the purview of those cases in which the patient should, according to Professor Tattersall, be referred. The position of the first defendant is, in many respects, quite different from that of the third defendant. She was the general practitioner, he the specialist. He wrote letters concerning his examinations which were available to her, as were notes made by the second defendant. I have already (p13-p16) summarised her notes concerning her consultations with the plaintiff. I will not repeat what I there said and will confine myself to the following points. 1. The only mention of the plaintiff's breasts in the first defendant's notes relate to the consultations on 6 June 1994 and 22 February 1995. On both occasions there are sketches of breasts with indications of something below - in the first instance - and around - in the second - the nipple of the left breast. In the sketch relating to the later visit there is a firm definite mass noted in the right breast but 16 UNREPORTED JUDGMENTS it is common ground that that notation is of no consequence. Both these notes resulted, according to the first defendant's evidence, from an examination carried out as a matter of course incidental to the carrying out of a pap smear and did not follow any complaint of breast problems. 2. There is no reference to complaints concerning lumps, tenderness or soreness in any of the notes right up to the last examination. 3. What the first defendant found on 6 June 1994 was in her opinion consistent with normal breast tissue. Similarly the notes in respect of the February 1995 consultation were said by the first defendant to indicate areas of lumpiness consistent with normal breast tissue. 4. The first defendant had available to her the letters of the third defendant which, on the occasions I have noted, referred to complaints of breast soreness, tenderness and lobularity in the context of complaints mainly related to hormonal problems. 5. His Honour made findings that the plaintiff did bring up the subject of lumps in her breast with the first defendant from time to time, albeit in a tentative way. 6. The notes of the second defendant were available to the first defendant, including those of 11 October 1994 - ("PMT = paranoid, sore breasts") a note which I would understand to mean that the plaintiff complained of pre-menstrual tension which was reflected in a paranoia and sore breasts. None of these matters suggests that the plaintiff was greatly troubled by an abnormal condition of her breasts which was not explained on hormonal grounds, nor that the first defendant had found a condition which she thought abnormal. Two pieces of evidence are, however, troubling from the point of view of the first defendant. The first is her statement made on 6 June 1994, about the need for a mammogram examination for those over fifty. The second is the fact that the plaintiff consulted the first defendant in January 1996, by which time the lump must have been discoverable on examination. Of course, having regard to Professor Tattersall's evidence - and the trial Judge's finding - that had the cancerous (or pre-cancerous) cells been discovered in 1994 successful treatment was probable, it is probably true to say that any failing to discover a lump in 1995 or 1996 was of no relevance as no causal nexus was shown. This point was not, however, argued and it is better not to express any concluded opinion on it. Notwithstanding these two factors I have concluded that the plaintiff failed to show that the first defendant ought reasonably to have referred the plaintiff for examination. My reasons are similar to those expressed in relation to the third defendant. The first defendant, on his Honour's findings, did sometimes receive complaints about lumps in the plaintiff's left breast and, probably, about soreness and tenderness in that region. It would seem, however, on his Honour's findings that these were low key complaints and made only on a few occasions. Possibly such complaints were made in June 1994 and February 1995 but then the first defendant found only what she regarded as normal tissue. I cannot accept, in the absence of a note, that the plaintiff made serious complaints to the first defendant about these matters on these occasions. Nor do I think his Honour could. Of course the plaintiff was being treated by a specialist to whom she did complain from time to time and it may be that she did not think it necessary to repeat the complaints to her general practitioner. Whatever the explanation for the plaintiff's conduct his Honour's findings deny that she ever made, much less regularly made, serious complaints about lumps in her breasts. URJ HOLLIDAY and ANOR v CURTIN (Brownie AJA) 17 Further, the first defendant received letters from the third defendant from time to time which would have led her, quite reasonably, to regard any breast complaints as of no great significance and explicable on hormonal grounds. The evidence concerning the first defendant's statement in June 1994 has caused me to reflect deeply on this issue. Nonetheless I do not think it should lead me to find that the first defendant was negligent. What she said was consistent with the great body of evidence in this case that there is a significant difference between a twenty-nine year old and a fifty year old woman. In these circumstances it does not seem unreasonable that the first defendant declined to act as though the plaintiff was a fifty year old woman. In addition her conclusion was that nothing abnormal was revealed by the examination. Finally, and not unimportantly, the letter written by the third defendant on 17 June 1994 stated that examination of the breasts was normal and gave no indication of alarm concerning the plaintiff's breasts. It must have acted to reinforce the view of the first defendant that there was nothing abnormal to be worried about. In all these circumstances I am not prepared to hold that the first defendant breached her duty of care. In the light of these findings there is no occasion to deal with the cross appeal on either the issue of damages or of costs. In any event, although it is academic, the costs order under challenge was well within the trial Judge's discretion and no ground has been put forward justifying interference by this Court. Powell JA I agree with Clarke AJA. Brownie AJA I agree with Clarke AJA. 1. Appeal allowed. 2. Judgment below set aside (except the judgment for the second defendant) and in lieu thereof judgment entered for the first and third defendants against the plaintiff; 3. The plaintiff to pay the costs of the first and third defendant of the trial and of the appeal and is to have a certificate under the Suitors Fund Act 1951 in respect of the costs of the appeal. Counsel for the appellants: I G Harrison SC Solicitors for the appellants: Louise Mallon Counsel for the respondents: J L Glissan QC/RC Pincus Solicitors for the respondents: Stephen Ippolito, Ross Koffel Solicitors